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Analyzing Special Counsel Report On Biden Documents Case; Did Biden's Response To Special Counsel Help Or Hurt Him?; Worries About Biden Revive Michelle Obama Candidacy Rumors; Will SCOTUS Hear Trump Immunity Case After Appeals Court Rejection? Aired 9-10a ET

Aired February 10, 2024 - 09:00   ET

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

[09:00:00]

VICTOR BLACKWELL, CNN ANCHOR: Get up and go to work on Monday morning. Again, I'm not anti-Taylor Swift. Right? This really isn't about Taylor. It's kind of about us.

I will say, though, that I am pro-Usher. It's 07:00 on the dot (ph). I'm in my Drive top, cruising the streets, Raymond IV. But somehow, we have overshadowed this landmark achievement of a 30-year career with incessant coverage for just this weekend a fan who's going to watch the game like the rest of us.

Thanks for joining me today. Smerconish is up next.

MICHAEL SMERCONISH, CNN ANCHOR: Legal "exoneration," political nightmare. I'm Michael Smerconish in Philadelphia.

That was the New York Times headline after the release of Special Counsel Robert Hur's report on his investigation into President Biden's handling of classified documents. The word exoneration, I think an overstatement. How bad was it? Well, a president who turned down CBS's invitation for a pre-Super Bowl interview with a guaranteed audience of millions in an election year suddenly felt obliged to speak to the nation in primetime from the Diplomatic Reception Room at the White House. And when he did, he seemed to be in denial, both about the substance of the report and the political implications.

Recent polling has shown that a majority of Americans, including a majority of Democrats, have major or moderate concerns about Biden's fitness for a second term. But when CNN's MJ Lee raised that with the president, he said that was only her incorrect perception.

(BEGIN VIDEO CLIP)

MJ LEE, CNN CORRESPONDENT: For months, when you're asked about your age, you would respond with the words, watch me.

JOE BIDEN, PRESIDENT OF THE UNITED STATES: Watch me.

LEE: Many American people have been watching, and they have expressed concerns about your age.

BIDEN: That is your judgement. That is your judgment.

LEE: This is according to public.

BIDEN: That is not the judgement of the press.

LEE: They expressed concerns -- they expressed concerns about your mental acuity.

In December, you told me that you believe there are many other Democrats who could defeat Donald Trump. So why does it have to be you now? What is your answer to that question?

BIDEN: Because I'm the most qualified person in this country to be president of United States and finish the job I started.

(END VIDEO CLIP)

SMERCONISH: Lee was prompted, obliged really to ask that question given the special counsels findings. Her found that Biden willfully retained and disclosed classified materials that included documents marked as classified. In other words, that he knew it. And the photos of Biden's document storage contained in the report were damning. And well, Trumpian. I mean, take a look. Can you distinguish on which side of the screen you're looking at Donald Trump or Joe Biden's lacks filing system.

What seemed to have roiled the President even more than the description of his careless archiving was the reference to his memory, especially when it comes to his deceased son, Beau. Was that mentioned by the special prosecutor gratuitous? Was it a cheap shot? Was it an effort to help Donald Trump? Yesterday, Vice President Kamala Harris called it all that and more.

(BEGIN VIDEO CLIP)

KAMALA HARRIS, VICE PRESIDENT OF THE UNITED STATES: The comments that were made by that prosecutor, gratuitous, inaccurate and inappropriate. The way that the President's demeanor in that report was characterized could not be more wrong on the facts, and clearly, politically motivated.

(END VIDEO CLIP)

SMERCONISH: When the VP invoke politics, she played right into Trump's hands by echoing his complaint that prosecutors are motivated by politics. And my references to Biden's poor memory actually have been a gift for the President. The DOJ report said that Biden had exhibited poor memory when interviewed by his ghost writer, Mark Zwonitzer, back in 2017, that he spoke painfully slow and struggled to remember events or to decipher his own notes. Further than in his interview with investigators last fall, Biden's memory was even worse, that he did not remember when he was vice president or when his term began, or when within several years Beau had passed.

So what was the relevance, in a word intent? Prosecutor Hur was saying he did not believe he could prove Biden had the requisite intent, the mental state of willfulness. And that's why he said that Biden would present himself to a jury as a sympathetic well-meaning elderly man with a poor memory. Those revelations went to the likelihood of success if the case were ever to be tried a proper framework for evaluating potential wrongdoing, notwithstanding that a sitting president cannot be indicted. As trial attorney and law professor Shane Specter put it to me, it was actually a favor for Biden, because absent that assessment regarding intent, Biden's conduct was largely indistinguishable from that of the former president, Donald Trump, who faces felony charges for his conduct.

[09:05:08]

Of course, the President didn't see it that way or help his cause during his presser when he mixed up the president of Mexico and Egypt days after saying that he'd spoken to two foreign leaders, each of whom had long since passed.

Soon after the Biden presser ended on Thursday night, I watched another world leader being subjected to a two-hour interview, Vladimir Putin was questioned by Tucker Carlson, many objected to the idea that Carlson would give the Russian dictator a platform. The interview was controversial before it began, former Secretary of State Hillary Clinton called Carlson a useful idiot for his role. I say, forget what you think of Tucker Carlson, I, myself am not his defender. But as a general matter, I don't agree with those who want to shield us from controversial speakers. If I did, I would lose many of my radio and T.V. guests.

I'd rather hear them and expose them through questioning. So I watched with great curiosity. Nothing that Putin said changed my mind about the unprovoked invasion of Ukraine. His views did not metastasize in my living room. But something that he did turned my head.

For the first 30 minutes he spoke without notes in a lecturing style free mostly of interruption and provided a detailed history of Russia dating back to the ninth century. It was boring, it was tedious, it was hard to follow, it was impossible to fact check in real time. But he looked and sounded formidable, smart, cagey, measured, not the feeble stuff of internet lore. And it was a reminder that whoever wins the American election is going to have their work cut out for them going toe to toe with the crafty Russian president. And that is something we should all keep in mind as we watch both Biden and Trump because we don't want a leader who's going to be Putin's lackey nor one and capable of matching his intellect.

Joining me now is Elie Honig, the CNN Senior Legal Analyst and former federal prosecutor.

Elie, great to have you back. The Times headline said "exonerated" is that a word that you would have us after reading Robert Hur's report?

ELIE HONIG, CNN SENIOR LEGAL ANALYST: Not at all, Michael. I respectfully take issue with the use of the word exoneration. And exoneration means somebody has been cleared of any wrongdoing. Think about, for example, the Central Park Five people who were falsely accused of a crime they had nothing to do with. This report is more like an inch away from an indictment if you look at it.

And you highlighted the key passage in your opening there, the third sentence of this report says essentially, the evidence showed that Joe Biden willfully retained and disclosed classified documents, there is a federal crime for willfully retaining sensitive national defense information. And if that rings a bell, it's because Donald Trump is charged indicted for 32 counts of that exact federal crime. But what Hur does, and this is fair for prosecutors to do is he says we need to look at the other factors around this. And he says that in his judgment that mitigates against an indictment, that's called prosecutorial discretion. And there's perhaps some debate about how we exercise that, but that's why he comes out at no indictment.

SMERCONISH: OK, the vice president says, it's gratuitous. Was it gratuitous to talk about his memory lapses?

HONIG: So first of all, the report itself was not gratuitous. The report itself is actually required by law. Robert Hur under the Special Counsel regulations, had to write a report setting forth his findings as to whether prosecution was required or not.

Now, as to some of the language around the memory loss, it's important to understand it's relevant to the prosecutorial determination here because Hur says, well, we might have a problem proving intent because of the memory loss. I do agree, however, that the way Robert Hur writes it, the way he describes it is over the top, is more colorful than necessary. And I think there are flourishes there that a prosecutor would not have to include. You could just write it as we believe that given our interviews with Mr. Biden, there would be intent questions, he -- his memory at times was faulty or failing, you could have left it at that. So I do think there's a little bit of an extra punch in there.

SMERCONISH: But in terms of the discretion that he exercised and what went into the report and what did not go into the report, he didn't need to talk about Donald Trump in the detail that he did, and lambaste Trump when Trump is facing indictment for all of his actions.

HONIG: Yes. Yes, that's a great point. There's a whole section in the report where Robert Hur comparison contrast, mostly contrasts, and I think accurately, Donald Trump's case with Joe Biden's case. And he points primarily to the fact that Donald Trump obstructed justice, he's charged with obstructing justice. Whereas Joe Biden mostly cooperated with the investigation.

[09:10:04]

Now, it is relevant for a prosecutor to take into account whether somebody obstructed or cooperated. But the specific drawing of a contrast with Donald Trump is really, in a sense, a political gift to Joe Biden. So, if you want to parse this indictment -- or excuse me, this near indictment, this report for political favors, there actually are political favors that go both ways here.

SMERCONISH: OK, so now the White House pushes back. Everybody knows how the President himself handled this on Thursday night. I think because of that response, they've elevated the issue of whether we get to hear the tape, the President's interview, was recorded, and so to the ghost writer, so what's the likelihood that the American people get to hear exactly what he did or didn't remember?

HONIG: So this is going to be really interesting, because it is clear under the law that this report had to be written. And the report references underlying evidence, including this tape. It is not entirely clear whether we will get to hear. If there had been a trial, which it does not look like there will be and it came into evidence, we would hear the tape for sure. But Michael, that tape that you're referencing is so important, because that shows and we're talking about a tape where Joe Biden told his ghost writer that he's -- at one point, Joe Biden says the classified materials are downstairs.

SMERCONISH: Downstairs.

HONIG: That shows us that Joe Biden --

SMERCONISH: Right.

HONIG: -- yes, he knew he had these documents. He took them for a reason. And remember, early on when the scandal broke, Joe Biden and his spokespeople were suggesting and then some that this was all inadvertent, that documents get mixed around, a lot of things move. Turns out, Joe Biden knew -- he knew it all along, and he took some of those documents for specific reasons. He wanted to craft a narrative around Afghanistan and remind people for history that he was right about Afghanistan.

So, a lot of Joe Biden's early statements when this scandal broke, I think had been seriously undermined by the facts of this case.

SMERCONISH: Elie, thank you as always. Great legal analysis. Now I'm going to talk politics.

HONIG: Thanks, Michael.

SMERCONISH: Joining me is the Ragin Cajun James Carville, the legendary Democratic strategist who ran Bill Clinton's 1992 winning campaign. He's now the co-host of the podcast, "Politics War Room."

James, thank you for being here. Is it too late for Democrats to change horses?

JAMES CARVILLE, DEMOCRATIC STRATEGIST/ CO-HOST, POLITICS WAR ROOM PODCAST: Well, I mean, in a sense, it's never too late. If you had a nominee and nominee dropped dead, then last week of October, you'd have some mechanism to have a replacement. It's pretty big late to do it, right, a lot of chaos. And -- but yes, you could, you could have when Lyndon Johnson dropped out in March 1968, we had a nominee. So, it's never too late.

But the later it gets, the more confusing the process gets. And then you get into DMC picking candidates to stay party chairs. And there's person called, Elaine Colmat (ph), who knows more about this than anybody, anyone in the world see written books are written. I'm kind of surprised she had been interviewed yet because she says massive information on what happens by what date.

SMERCONISH: OK. So from the sidelines and with your great institutional and political knowledge, what do you see going on here?

CARVILLE: Well, the President is O (ph), the public knows he's O, it's just -- there's no -- there's no convincing one way or the other.

I also know this, it is written in marble in Washington, D.C., that there shall be no Democratic special counsels or independent prosecutors. The professional center will not allow that, it'll only be Republicans. I have no idea how somebody went down and got a chisel and etch that in marble, but I do know that is the law of Washington. This guy wasn't just a Republican, he was about as far out as partisan Republican as you can be.

Why, if we pointed him, I have no idea. Merrick Garland's philosophy I think is that will appoint somebody so bad that will get credit for playing someone good. I literally don't get it. You know, don't get why --

SMERCONISH: OK. Well, you beat me to the punch -- you beat me to the punch in reminding he was Merrick Garland's appointee, right? So it's not as if --

CARVILLE: Right.

SMERCONISH: -- Donald Trump was the one who decided here's the guy to look into Joe Biden.

CARVILLE: But I think Merrick Garland is a man consumed with appeasing the Washington centrist or pleasing the cosmos club people. I have no idea. Why you pick this guy, I have no earthly idea there.

You know, I thought I knew Democrats practice hall in Washington. And what why is Check that out of 15 special counters, 14 are Republicans. And median a common charity love that. And I just do not understand.

[09:15:13]

SMERCONISH: OK. So, speaking of chiseling in marble, we want you to live a long life. But someday the epitaph is, it's the economy stupid, the words for which James Carville is known. The economy ebbs and flows, economies get better. Age, it comes for us all. So, if you were running the campaign, what do you do?

Do you put them out more? Do put them out less? How the hell do you handle this?

CARVILLE: What would -- you know, don't accept the Super Bowl interview. Your -- I don't know, pull it averages just your three points down in a two way. It's the biggest television audience not even close. And you get a chance to do a 20 to 25 minute interview on that day, and you don't do it. That's a kind of sign that the staff or yourself doesn't have much confidence in you.

There's no other way to read this. And he's not going to do debates. He is O, I know what it is because I'm almost as old as he is. And it's never going to get better. You never -- you know, that today is the youngest you'll ever be for the rest of your life.

Now, they have made the choice that they want to go through with this. I know Democrats, myself being one, fundraisers, donors, you know, door knockers, flushers volunteers, the whole Democratic infrastructure kind of country, we need to be told, OK, this is what presidents don't do, this is what he's not going to do to try to work around whatever it is. But that's not the Super Bowl interview is telling. I also thought the fact that there's documents that he took, what about Afghanistan? I think he's obsessed, which and he's right now.

I do think the best thing he's ever done as president, maybe the best thing any president has done is just get out of Afghanistan. Like don't pass, go. Don't collect $200 Just get out. And he did. And he was for that for a long, long time. And he was consumed that he had this view of history, which I think is 100 percent correct. And he just wanted people to know that that was his view that he never was fought as.

SMERCONISH: As -- right.

CARVILLE: That was (inaudible).

SMERCONISH: As you know -- as you know, his critics, his critics will say that it was chaotic, that he did it impulsively, and that there was loss of life that there need not have been. I totally agree by the way about the Super Bowl. It is the one time when the whole country comes together. It's an election year. It's advertising you don't have to pay for and they passed it up.

Enjoy the game. And thank you as always, James. I appreciate it.

CARVILLE: Yes, in getting out it don't matter that losing a war is never a good look. We lost that war.

SMERCONISH: James Carville, ladies and gentlemen.

What are your thoughts? Hit me up on social media. I will read some responses throughout the course of the program.

From the world of YouTube. I agree Joe is a bit compromised. I also think Hur was totally out of bounds with his gratuitous comments.

Robert Goldstein, I mean, therein lies the debate. I think it went to intent, intent that he didn't think he'd be able to establish. What was Elie's word flourish? That he took some flourishes that he took some liberties, but there was a reason to put that information in the report. Did it need to have that level of detail?

I mean, therein lies the issue. Are we going to get, and I don't want to read it, to hear it. Are we going to get to hear that audio? Won't that be insightful?

OK, again, wait until you see today's poll question at smerconish.com. You ready? It's what you're buzzing about. So I'm asking it.

Should Jill Biden suggest to her husband that he not seek reelection? Go to smerconish.com and vote, sign up for the newsletter while you're there?

Up ahead, although Donald Trump seems likely to win his Supreme Court battle about being removed from the ballots, he's got a Monday deadline to ask the court to review his immunity case, which he lost Bigley this week in the D.C. Court of Appeals. What does this mean for his ability to further delay the January 6 trial?

And quote, "I'm an elderly man and I know what the hell I'm doing." That's how President Biden addressed the Special Counsel report at a fiery press conference. Did he help or hurt his cause? One possible yardstick, the long running conspiracy theory about Michelle Obama replacing Biden on the ballot, it began trending on X. David Axelrod joins me next.

(COMMERCIAL BREAK)

[09:23:46]

SMERCONISH: After that scathing Special Counsel report about the President's mental fitness is fiery defensive, emergency press conference seems to have dug them a bigger hole and the White House counsel was sent out the next day trying to clean it all up. What does it say about the President's ability to hold on to his incumbency?

Joining me now somebody with pretty unique insights on all of this former senior adviser to President Obama, David Axelrod, who of course is a CNN senior political commentator.

David, great to see you.

DAVID AXELROD, CNN SENIR POLITICAL COMMENTATOR: Nice to see you, Michael.

SMERCONISH: The Special Counsel comments, they would not have landed, they would not have landed with the resonance if the public hadn't already seen for themselves. True?

AXELROD: Oh, absolutely. Look, the things that are most damaging are the things that confirm people's suspicions or fears. You know, when Mitt Romney made that 47 percent comment back in the 2012 election that confirmed a narrative, negative narrative about him when Hillary Clinton said basket of deplorable that concern -- it confirmed a negative narrative. And look, long before this. There was this narrative out there about the president.

It's the big meme on social media. It's something Republicans have been pushing for a long time. And it's clearly damaged him in polling that is -- that predates the special counsel's gratuitous remarks .I agree with Elie that I think he went way over the top on those. But nonetheless, that is what the headline off of the report -- the 350 page report was.

[09:25:21]

SMERCONISH: If you were in the White House on Thursday, you know, the lay of the land, you know, the diplomatic reception room. I've been there at a few times, but not like David Axelrod. The advanced man in me said, that's a bad setting. It's tight. The media are right there.

They are tough to contain. And probably they should have --

AXELROD: Yes.

SMERCONISH: -- waited until the next day, just wondering, what do you think?

AXELROD: Yes, he was like a big sirloin steak tossed in the middle of a bunch of hungry dogs there. And it wasn't it was not optimal. Look, I might have done a one-on-one interview with somebody, that might have been better than --

SMERCONISH: -- the mob scene that we saw a thing that was more controlled where he was less likely to be provoked to anger which he was in that in that particular setting. So it clearly didn't have the impact that they wanted. The only thing that he showed was some vigor which was probably good. There was some edge to him may have helped him.

But in the -- on the whole the thing was not good. And I you know, one point that hasn't really been made enough is in addition to hitting this piece about his age, the press conference, gave all kinds of targets for the Republicans in the House, who are going to Benghazi this issue to death. They are going to use the impeachment proceeding. They've already signaled this, and they're going to go after that transcript. They're going to go after the tape of his conversation with his ghostwriter.

They're going to do everything they can to keep this alive because their standard there is a dumpster fire of legal and ethical issues and they want to muddy the waters.

SMERCONISH: I got to ask you about this. Look at who Vegas odds makers are saying have the best chances of being elected this fall. Trump is a five to six shot, it's better than even. Biden 15 to eight, a little better than two to one. Next in line, Michelle Obama 11 to one.

Ahead of Nikki Haley Gavin Newsom, Robert F. Kennedy Jr. and Kamala Harris. I don't know about you, David. I've got people in my orbit and my radio listeners say the same thing. There's like always a family member who says, in my case, it's my brother, keep your eye on Michelle Obama. And I say that is crazy. What should we be saying about Michelle Obama?

AXELROD: Well, here's what I know, Michelle Obama loves this country. She's a brilliant person and a brilliant communicator. But she was a conscript to politics. She never was interested in a political life. Even when Barack Obama was a young politician, she really didn't participate much in his campaigns. I was with him in a Senate campaign in 2004, I think she showed up twice in the whole campaign on election nights. So, you know, she is not someone who likes politics. She doesn't like the tone and tenor of politics.

And I would be floored if she would be consent to that. They feel that they gave 10 years of their life to this. And I'm sure she feels as Barbara Bush did when she said there has to be someone other than the Bush's and the Clintons who could be President of the United States. My guess is that's her attitude.

I always say, Michael, that I have as much chance of dancing in the Bolshoi Ballet next year than that she would be President of the United States. And so, if you see me running around at the end of the year in a leotard you'll know what I mean.

SMERCONISH: I was going to I was going to say Bolshoi is hiring. I hear Bolshoi is hiring. Maybe once -- maybe once and for all, David Axelrod just put it to rest. Unless Cindy Adams is not watching. Thank you, David.

AXELROD: All right, Michael, great to see you.

SMERCONISH: From the world of X, formerly Twitter, what do we have? Biden should not run and Harris would be worse for the country. So who's next in line?

I mean, this is -- you know, this is sort of the conundrum, not only the timing and how far into the process we are, although James Carville did speak of, you know, conventions having some significance if they need to, the LBJ example. But there's just not an obvious process. Is there? Do you think that Gavin Newsom would stand idly by if it were to be Michelle -- did I just say Michelle Obama, oh my god, now I'm falling into the trap.

[09:30:00]

Oh, my God. I believe it is a zero percent likelihood that Michelle -- I think that Michelle Obama like clinks -- it's a drinking game among the Obamas. Seriously. Like every time some fool like me brings it up, they're clinking their glasses, probably with Richard Branson.

All right. I got to get out of this segment. I want to remind you go to my Web site at Smerconish.com, vote on today's poll question. Should Jill Biden suggest to her husband that he not seek re-election?

Up ahead, with all the talk of Biden's documents, many are forgetting about Trump's very real legal peril following the D.C. Court of Appeals' rejection of his immunity claims this week. The Supreme Court will soon make a decision that will likely determine whether he gets tried before Election Day.

When you vote on the poll question sign up for my free daily newsletter. You'll get exclusive editorial cartoons from the legends. Check out what Rob Rogers drew for us this week.

(COMMERCIAL BREAK)

[09:35:03]

SMERCONISH: Amid the uproar over the Biden documents case, don't forget Trump's own legal peril. Within the next 10 days or so the Supreme Court might make the most consequential decision of our lifetime. It pertains to Donald Trump and the election but I'm not referring to whether Colorado will be permitted to knock Trump off that state's ballot. No, I'm talking about a more arcane but important issue of legal process.

On Tuesday, the U.S. Court of Appeals in the D.C. Circuit rejected Donald Trump's assertion of immunity in the federal election interference case pending now in front of Judge Tanya Chutkan. The court said this, "We cannot accept former President Donald Trump's claim that a president has unbounded authority to commit crimes that would neutralize the most fundamental check on executive power the recognition and implementation of election results."

The ruling against Trump was not a great surprise. Although, the comprehensive nature of the 57-page opinion it was thorough to the point of clearly wanting to be the final word. More revelatory was the accompanying judgment entered by the three-judge panel the order contained a mandate which basically said that Trump has until Monday to notify the Supreme Court of his intent to file an appeal or writ of certiorari, which he will surely do.

The Monday deadline is a highly accelerated timeline. Normally, three weeks or so would be afforded before a case will be sent back to the district court. No doubt that's in recognition of the election calendar.

Once Trump provides notice of his intent to appeal, the Supreme Court will need to decide whether they're going to stay the ruling of the Court of Appeals pending Trump's filing of a petition for writ of certiorari. Or will they allow Judge Chutkan to re-list the case for trial?

Remember, this case had been scheduled for trial on March the 4th. Trump wants to delay all the cases against him and run out the clock until Election Day. A Supreme Court's day would freeze the proceedings at the trial court level and make it less likely that Trump would be tried before the election. Without a stay, Trump's lawyers will be free to pursue his appellate rights, but Judge Tanya Chutkan could simultaneously put the case back on her trial calendar.

So, here's the issue. Can Donald Trump get the necessary five votes needed for a stay? He appointed three of the nine justices but that's no guarantee of how any of them are going to vote. Of course, whether this case viewed by me and by many as the most potentially perilous to Trump among the four indictments whether it gets to trial before the election could determine the election winner.

Look no further than the poll released last week NBC. It shows Donald Trump ahead nationally over Joe Biden by five points. But when asked if a Trump conviction would change their vote the lead switches to Biden by two.

Joining me now to discuss is Tobias Barrington Wolff. He's a professor at the Penn Carey Law School. He specializes in civil procedure complex litigation, conflict of laws and constitutional law. Professor, thanks so for being here. What's going to happen on Monday?

TOBIAS BARRINGTON WOLFF, PROFESSOR, PENN CAREY SCHOOL OF LAW: That's the -- that's the big question, right? So, the D.C. Circuit, exactly as you described, Michael, they have taken every part of this case that they have control over and they have advanced it. They have said, we are not going to allow ordinary delay to slow down the potential trial calendar for this case. What they don't have control over is the part of it that involves the Supreme Court. And what the court is going to need to decide is whether to put the case on hold while they are figuring out whether they are going to hear an appeal.

And so, on Monday, in very concrete terms I think what's going to happen is that Mr. Trump will give notice to the court that he intends to file a petition for writ of certiorari, which is the device to for trying to seek an appeal in the Supreme Court, and he's going to ask them to -- at that point, the D.C. Circuit will continue to put things on hold until the Supreme Court decides what to do about a stay. And then the next big decision that they have to make, the Supreme Court, is will they stay the proceedings while they are deciding whether to hear an appeal.

SMERCONISH: How much of that is going to play itself out publicly?

WOLFF: Oh, that's a great question. So certainly, the court's deliberations will not be played out publicly at all. The court's decision will be public and I think it will be public fairly quickly. My guess is that the court will decide within about a week and a half whether they are going to issue the stay that he is requesting.

And there's an interesting feature of the timing here. So, from his perspective he -- in ordinary cases you get 90 days to file a petition for writ of certiorari to the Supreme Court. And so, what he would like most is to have the court issue a stay and just say, go ahead and file your petition, and then he'll take 90 days. And, you know, that means that a trial couldn't happen any sooner than the end of the summer at the very best and basically the trial would be put off until after the election in all likelihood.

[09:40:07]

Another possibility is that the court might say, you've asked us for a stay, you've told us that you're going to grant -- you're going to ask for a petition to appeal to us, we are simply going to treat your request for a stay as your petition and tell you -- we'll grant you the stay but start briefing the issue of whether we should take this appeal right now.

Or they might even just go ahead and take the appeal. They have the option of accelerating the timeline, too. And indeed, in the case involving his ability to be on the ballot under the 14th Amendment, the Colorado case it was just heard before the court, they accelerated that thing with rocket fuel, right? And so, we know what it looks like when the court wants to move things forward.

And, I think, the question to whether they grant a stay is incredibly important. The question of whether they advance the timeline or instead they just give him the maximum amount of delay. That's the big question. And that will play out in public when they tell us what they're going to do.

SMERCONISH: Professor, give me -- give me the 30-second answer to this question because I'm limited on time. If we're counting noses, whose vote are you most interested in in determining whether Trump can get five votes?

WOLFF: So, the two conservatives on the court who I think cared the most about the institutional integrity of the court are the chief justice and Justice Amy Coney Barrett. The chief has shown in several ways that he cares about perhaps his legacy but also the institutional regularity of the court. And Justice Barrett, before she became a judge, was a scholar of procedure in the federal court and I think cares very deeply about these issues.

You know, there has been a lot of procedural irregularity in the court in the last several years. So, you know, you can't count on their commitment in that way. But, I think, they are the two members of the court on the conservative side who are going to care the most about making clear that they are using their powers in an appropriate fashion.

SMERCONISH: You agree with me that despite all the attention that was just paid to Colorado, and that's a big case, I don't mean to minimize it, what you and I are discussing whether the Supreme Court enters a stay is likely outcome determinative as to whether he gets tried before the election. Quick answer.

WOLFF: Whether they grant a stay and if they do how much they accelerate the timetable is going to determine whether this criminal trial happens before or after the election. That's absolutely right.

SMERCONISH: Professor Wolff, thank you so much. Appreciate your time and expertise.

WOLFF: Thank you, Michael.

SMERCONISH: Checking in on your social media comments. From the world of X, what do we have?

Are there any good arguments for Trump's immunity claim? If not, it will start by summer.

I don't think so. I don't think that he -- I don't think that he has a -- you know, in some of these cases I think that he's got a good legal defense if not a good factual defense. And in some cases, you know, it goes vice versa.

But if you're asking me for my opinion, no. I've long said that this is the most perilous case that he faces, best on the facts for Jack Smith, probably the Mar-a-Lago case. But this is the one that I think is really potentially lethal to him as a political matter. And we're -- we're going to find out within a week or 10 days whether he is going to be able to get a delay.

Still to come, more of your best and worst social media comments. Don't forget to vote on today's poll question at Smerconish.com. Yes, there it is. Should Jill Biden suggest to her husband that he not seek re-election?

While you're there voting sign up for the free daily newsletter for which Jack Ohman, the Pulitzer Prize winner, sketched this this week. Funny, right?

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[09:48:03]

SMERCONISH: I'm told the social media world, particularly fired up today.

If he's not competent enough to be charged with the crime he committed, he certainly is not competent enough to be president. You can't have it both ways.

So, none of your business, did I say that right? I got to say I had the same reaction when the defense from the White House was, well, there's a lot on his plate that day. I mean, you heard that, right? Right after 10/7, the unprovoked Hamas attack on Israel, he was dealing with all of that. And then I found myself saying, well, how well is he dealing with that?

I mean, if he's distracted and all those things that are in the report are true then it makes me wonder how he's able to fulfill those other responsibilities. So, I get what you're saying. More social media reaction. What do we have?

More than anything the special counsel report about Biden is a gift to you in your crusade to make president -- Trump president.

Rajiv, maybe a different way of looking at this is to say, if you, and I assume you do, sir, believe that Trump is a threat to democracy because you're accusing me of like carrying his water and having a secret agenda.

Here's a different way of looking at it. Michael, thank you. Michael, thank you for the openness and the candid conversation on CNN, talking about the issue that's on everybody's mind. That and the Super Bowl.

Thank you, Michael, for airing it out so that we can decide, we, Democrats, that's you folks, once and for all, is this really the guy that we want to go with before we have closed out all of our other options? Thank you, Michael, for forcing a decision now because we don't want to wake up later and say, my god, the signs were all there, even the special counsel told us in his report. We should have changed horses then.

So, you're welcome. One more if I've got time, Catherine. I hope that I do because I love this.

Any idea what No Labels is up to?

Well, Joe, no is the answer, no is the answer.

[09:50:02]

But, you know, Joe Lieberman told me that it's going to be like the first week of March when they've got to make a determination. If No Labels means what it says, which is that if the country doesn't want either of them, then they're going to do something to about it, then the moon and the stars have lined up for that.

I'll tell you something else. This is going to be a year with or without No Labels of a lot of third-party activity. And I think the third-party candidates are going to play a significant role in this election. I'm not just thinking of RFK Jr. There are a number of people running. And I don't know which way that cuts. I don't know. But there's a lot that's going to take place.

Coming up, the final results of the poll question at Smerconish.com. Should Jill Biden suggest to her husband that he not seek re-election? Be sure to sign up for the newsletter when you're there. You're going to find exclusive content from great political cartoonists. How about this from Steve Breen? That's a subject we haven't even discussed yet.

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[09:55:26]

SMERCONISH: That's what we've got so far. Wow, whoa, 35,892. Should Jill Biden suggest to her husband that he not seek re-election? Can we call it like two-thirds, who say, yes, she ought to get in his ear?

Hey, I've never done this before. Put back on the screen the complaint from before the commercial break because something occurred to me. Rajiv who says, "More than anything the special counsel report about Biden is a gift to you in your crusade to make Trump president."

No. Sir, I'm not the one making Trump president. You are. Because apparently you don't want me to talk about the report. You want me to -- you want me to treat the report and the concerns that exist about Biden's cognitive abilities as the Voldemort of the campaign.

Like, just ignore it. Please, Michael, don't bring it up. And what, nobody is going to see? No, you should be thanking me for the open airing on this program about the issue that is most of concern to voters such that three-quarters say they're worried, they're worried. So, thank you for giving me the opportunity to say that.

Thank you all for watching. Hit the Web site. I'll see you next week.

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