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CNN TONIGHT: Biden Admin Briefed By Experts In October On Need To Ramp Up Rapid Testing Before The Holidays; Trump Pushes Back On Vaccine Conspiracies; Hundreds Of Prosecutors Leave Philly D.A.'s Office. Aired 9-10p ET

Aired December 23, 2021 - 21:00   ET

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

[21:00:00]

JOHN BERMAN, CNN HOST: She died today, at her home, in New York. Her publisher said, the cause was Parkinson's disease.

Didion was a pioneer, of what was known, at the time, as "New Journalism." Her numerous best-selling books included "Slouching Towards Bethlehem," "The White Album," and "Salvador."

In recent years, she were perhaps most famous, for her 2005 book, "The Year of Magical Thinking," a heartrending account of the grief that followed the sudden death of her husband, writer John Gregory Dunne.

In it, Didion wrote, "When we mourn our losses we also mourn, for better or for worse, ourselves. As we were. As we are no longer. As we will one day not be at all."

Joan Didion was 87.

The news continues. So, let's hand it over to Michael Smerconish, and CNN TONIGHT.

MICHAEL SMERCONISH, CNN HOST: John, thank you.

I am Michael Smerconish. Welcome to CNN TONIGHT.

On this eve of Christmas Eve, with Omicron, spreading far and wide, and not nearly enough testing, to meet the massive demand, a new report, from "Vanity Fair," suggests the Biden administration dismissed a bold plan, months ago, to ramp up rapid testing, ahead of the holidays.

It's been characterized, by the magazine, as "A blueprint for how to avoid what is happening at this very moment," meaning the scramble nationwide, to get a COVID test, nearly two years into this pandemic, endless lines, hours of people waiting, so that they can celebrate Christmas safely, with others.

But is that what really happened? The White House says, they didn't dismiss anything. We're about to talk to a doctor, who attended the White House meeting, where that very proposal was made, on October 22.

"Vanity Fair" says it got hold of the 10-page plan that included a testing surge, to prevent holiday COVID surge. The idea was to push the administration, to get out rapid home COVID testing, to Americans, so that they could screen themselves, and reduce transmission, before the holidays.

The proposal purportedly called for an estimated 732 million tests, per month, a number that would require a major ramp up, of manufacturing capacity. But that didn't happen. Not at that scale.

Now, the administration, is scrambling, to catch up with demand. President Biden promised Tuesday that half a billion free at-home tests would be sent out, to any Americans, who wanted one.

But no contract has been signed yet, to purchase the new tests. The White House says, it's still working to finalize it. The website, to sign up for them, isn't running yet, because the tests aren't ready yet. And it's also not clear how Americans, who don't have internet access, can get one.

So what's - he's promising to do, maybe too late to pull off, before the variant further divides and conquers. When questioned this week, about the lack of availability of tests, nationwide, with the pandemic worsening, President Biden said this.

(BEGIN VIDEO CLIP)

DAVID MUIR, ABC NEWS HOST: If you go to the pharmacy, we hear this over and over again. "Empty shelves. No test kits." Is that a failure?

JOE BIDEN, PRESIDENT, UNITED STATES OF AMERICA: No, I don't think it's a failure. I think it's - you could argue that we should have known, a year ago, six months ago, two months ago, a month ago.

I've ordered half a billion of the pills, 500 million pills - I mean, excuse me, 500 million test kits that are going to be available, to be sent, to every home, in America, if anybody wants them.

But the answer is, yes, I wish I had thought about ordering a half a billion pills, two months ago, before COVID hit here.

How did we get it wrong? Nobody saw it coming. Nobody in the whole world. Who saw it coming?

(END VIDEO CLIP)

SMERCONISH: He said that he wished he thought about ordering 500 million at-home tests, two months ago. But three months ago, he promised 300 million.

His spokesperson addressed the concerns, earlier.

(BEGIN VIDEO CLIP)

JEN PSAKI, WHITE HOUSE PRESS SECRETARY: The President and the team did take steps, to increase capacity. Of course, if there would have been 500 billion (ph) tests, and we would have known that there were these, you know, very transmissible variants, that's one thing. The President, using the Defense Production Act, and investing $3 billion, allowed for there to be an increase in production, so we could order the huge number of supply that we're ordering now.

(END VIDEO CLIP)

SMERCONISH: I want to bring in a longtime advocate, for rapid testing, who attended that October White House meeting, we just told you about.

He told "Vanity Fair," quote, "It's undeniable that the administration took a vaccine-only approach." And the government, quote, "didn't support the notion of testing as a proper mitigation tool."

That expert is Dr. Michael Mina, Chief Science Officer, at eMed, former assistant professor of epidemiology, at Harvard's School of Public Health.

Welcome, Dr. Mina.

So, was there a plan for mass distribution, of rapid testing, at that meeting, of October 22? And if so, why wasn't it acted upon?

DR. MICHAEL MINA, CHIEF SCIENCE OFFICER, EMED, FORMER ASSISTANT PROFESSOR OF EPIDEMIOLOGY, HARVARD'S SCHOOL OF PUBLIC HEALTH, ATTENDED OCTOBER WH MEETING ON RAPID COVID TESTS: Well, the meeting was an informal and informative meeting, to try to suggest to the administration that there are certain actions that can be taken, to help us, not end up where we are today.

[21:05:00]

But I want to emphasize that actually, I would say that the administration did start acting, in the couple of months, since then. And it's easy for us, to put together, a document that says that we need a lot of tests. But we didn't have the tests, at the time.

And I would say, in fairness, the administration has been ramping up testing, since. And I have been probably the greatest critic, about the United States, not having enough tests. But I also do recognize that those tests have in fact existed.

SMERCONISH: "Vanity Fair" is pretty definitive, in saying that there was a document. It was 10 pages long. The advocacy was for 732 million tests per month. Was it raised, with that level of specificity?

MINA: Well, the actual amount was raised. Yes. But what I would say is that there's been - there's been massive efforts, since then. So, I don't want to be too critical. I've been very critical in the past.

But the administration has put aside 3 billion since then, plus the additional 500 million, that's been suggested. So, that's been a massive, massive, forward-looking plan. And so, I guess what I'm trying to do is, is see what has happened, since then.

I think, the bold initiative, had it, come, to fruition, would have been amazing. But it would have been very, very difficult, in the last two months.

I had started talking about this, a year and a half ago. And so, we ended up in October. And since then, I would say that there has been a lot of forward momentum. And so, I do think it's important to give credit, where credit's due, in this particular case.

SMERCONISH: OK. I'm not going to continue to drill down, on it, other than to say, I think you've confirmed it, and have said, "Thereafter, there was a turn for the better."

MINA: Yes. I would argue that there has been. And I'm looking forward to--

SMERCONISH: OK.

MINA: --Americans getting these, yes.

SMERCONISH: Dr. Mina, has there been a de-emphasizing of testing, in part out of the belief that if we're talking about testing, we're not talking about vaccination? And we need to be talking about vaccination, first and foremost?

MINA: I would say that that has existed. Yes. We did, early in this year, we got the vaccine started. And, there's an argument to be made, for putting all of our effort, into vaccines.

I think, probably there should have been a lot, the majority of effort, put into vaccines, but we should always keep our eye on the ball that this virus is a pandemic virus that can change, and morph, and shift, at any time, as we're seeing.

And so, we've always needed, to keep all of the mitigation strategies that we can. And I've said in the past that we probably shouldn't have all of our eggs in the vaccine basket. And I think now we're seeing some evidence of why, why that's important.

But certainly having the vaccines is front-and-center. I think any epidemiologists or physician would argue that that's the most critical. But I've argued, of course, over two years now that testing is one of the most fundamental tools that we could have, in our public health response, to this virus.

SMERCONISH: So, what needs to be done now?

MINA: Well, I think, we can't materialize 2 billion or 5 billion tests overnight, to really get a - to get frequent testing, out into Americans' hands. We have to recognize that.

So, given the hand that we're dealt, at the moment, I think we need to be very strategic, about how we use the rapid tests that we have, at our disposal. Thus far, the rapid tests have been sort of spread out, across the country, but not in a very strategic and careful manner.

And I think if we use strategy, around these, in the same way that when we go to war, with another country? We have strategy. We don't just send troops all over the place. We can do that here. And we can make the tests go much further. We can make them very valuable, if we put a limited number of tests, where they will be most effective.

SMERCONISH: Dr. Michael Mina, thank you so much for your time.

MINA: Absolutely. Thank you.

SMERCONISH: Looking for more perspective, on this, right now, as to where it leaves us, and what we can see, in the weeks ahead.

Retired Admiral Brett Giroir is here, the White House point man, during testing, for the Trump Administration.

Admiral, thanks for being here. A very basic question. Why is this testing issue so important? What is it that we will do, with the result, of the tests, once they're administered?

ADM. BRETT GIROIR (RET), COVID-19 TESTING CZAR UNDER TRUMP, FORMER ASSISTANT SECRETARY, HEALTH & HUMAN SERVICES UNDER TRUMP, PEDIATRICIAN: Well, thank you very much for having me on.

And Dr. Mina worked with me, very closely, when I was in the administration. And I appreciate his support.

Tests are going to be helpful for two reasons.

Number one, to screen individuals, who may come in contact, with high- risk individuals, to make sure that those individuals, like college students, can't pass the virus, to an elderly person, or a person with cancer.

But secondly, and extremely important, in the last 48 hours, we need early testing, for those high-risk people, who could benefit, from those oral drugs, from Merck and from Pfizer.

[21:10:00]

This is part of that strategic placement of tests. Until we have a billion per month, we're going to have to give the tests, to people that can benefit from them, most. And part of those, are the high-risk people, who are eligible, for oral therapy. And secondly, as Dr. Mina has always said, and I always said, to test people, to prevent them, from spreading the virus, to others, who are at high risk.

SMERCONISH: Well, 500 million doesn't sound like enough, right? And that's the number that the President is speaking of.

GIROIR: Yes, 500 million - remember, before I left the Trump Administration, we distributed 180 million rapid tests, through the States, for free. These are the same tests. They are just now for home-use.

500 million, you can't blanket the country. You're going to need about a billion per month, which was our goal, to have a billion per month.

For the 500 million, you're going to have to be strategic. And that means, use those tests wisely. For example, in our administration, we sent them, to nursing homes, assisted livings, historically Black colleges, the Tribes, very high-risk groups, certain inner-city groups.

For the 500 million now, I think you're going to have to distribute them to the elderly, to the people, with comorbid conditions.

We know who they are, right? We have the Medicare rolls. We could send them specifically, and anyone, who would meet the criteria, for oral antivirals. Because remember, the earlier you test, and can get on those oral antivirals, the more likely you're going to save your life. So, we need to do them strategically.

SMERCONISH: But Admiral, how real--

GIROIR: 500 million is not enough.

SMERCONISH: Right. How realistic is it, if the contract has not been signed, and if we're not ramped up for the manufacture, that there could really be 500 million, in January or even February?

GIROIR: Yes, there's not - I'm not in the administration, now. I don't think you can do that, right?

There was a lull in investment, between January and October. And now, all the pieces are coming together. I guess Dr. Mina and group kind of catalyzed the administration. But that's when you saw lines, like the Abbott line, shutting down, because of a lack of demand. And it's very hard to catch up, from behind.

If we had invested during that time, consistently, we might be at that level. And, in fact, we projected, we should have been at a billion by July or August. But we're not at that level now. So we're playing catch-up. So, that 500 million is not enough--

SMERCONISH: So--

GIROIR: --to give everybody tests.

SMERCONISH: The "Vanity Fair" story, to which I made reference, pretty hard-hitting, with regard to the approach taken by the Biden administration.

It also begs the question, was enough done, on Donald Trump's watch, on your watch, to set the stage, for where we are today?

GIROIR: I think - I really think, we did. Remember, we already sent out 180 million rapid tests, by January of 2020. And we were on a pace, to be at a level of rapid tests, at least 200 million to 300 million, by April, and probably half a billion by June. We had made the investments.

But you got to constantly invest. And it's not only the federal government's fault. There was a low demand, from the public.

And remember, the States had about $30 billion in testing money. And before I left, we put these tests, on what's called the GSA Schedule, so every state could buy as many as they want, for $5 a test. And they didn't do that. The federal government didn't do that. And the industry cratered.

That's why we're behind right now. We have to play catch-up. And let's look forward, let's use those 500 million strategically, protect the elderly, protect the vulnerable, and make sure that everybody, you can get the oral drugs, from Merck and Pfizer, can get them.

SMERCONISH: Quick final question. I also learned, from "Vanity Fair," maybe something that I should have already known that in Europe, there are 200 different types of rapid tests. They sell for about $1.50. And they're plentiful. Like, what are they doing that we're not doing?

GIROIR: So, this is a regulatory issue. And Dr. Mina has spoken about this. And I certainly worked from inside the administration.

There are regulatory standards here that approach these, more as a individual test, to make a diagnosis, versus a public health measure. And I do agree that although the FDA has done a great job, we do need to approve more very quickly.

That's one reason, at the end of the administration, we allowed EUA authority, to be under me, as the Assistant Secretary, to rapidly approve, these kinds of tests, to get them on the market.

That was reversed. So, I think we're back where we started from, at the early part of 2020. There needs to be regulatory reform. And it needs to happen quickly.

SMERCONISH: Admiral Giroir, thank you so much for being here.

GIROIR: Thank you.

SMERCONISH: Social media reaction, already coming in, to tonight's program. What do we have?

We have a long one. That's what it is.

"It's too little, too late. The debacle that is testing should have been resolved in 2020, not 2022. The source of the problem isn't a lack of tests. It's a bureaucratic bottleneck at the FDA, a problem that the President should be able to solve."

[21:15:00]

Well Admiral Giroir just addressed that issue. I mean, I don't know, if the rest of you were aware of this. I learned it from reading in that piece.

And I assume it to be true that tests are much more plentiful in Europe, up to 200. Where we have, what, 13, 15, that have been approved? They sell for a $1.50, and they're all over the place. And he just confirmed what you're saying, which is that it is a regulatory issue.

I also heard Dr. Mina say that, while, things have gotten better, there was indeed a meeting, on October 22, and a proposal that was made, for 700-plus million tests, and it wasn't acted on, for whatever reason. We'll continue to follow this story.

Something unusual has been happening this week. And that is that Donald Trump joined the war on disinformation, meaning he's on the side of truth, at least when it comes to vaccine conspiracies.

So, what is Trump up to? Insight from a great political mind. Scott Jennings, is here next.

(COMMERCIAL BREAK)

SMERCONISH: Is Donald Trump no longer in lockstep with his base? If you need proof that his call, and response relationship, of those 2016 rallies, isn't what it once was? Take a look at this.

(BEGIN VIDEO CLIP)

CANDACE OWENS, CONSERVATIVE AUTHOR, TALK SHOW HOST, POLITICAL COMMENTATOR, AND ACTIVIST: And yet, more people have died, under COVID, this year, by the way, under Joe Biden--

DONALD TRUMP, FORMER PRESIDENT OF THE UNITED STATES: Yes. That's right.

OWENS: --than under you. And more people took the vaccine, this year. So, people are questioning how--

TRUMP: Oh, no the vaccine work.

OWENS: Yes.

TRUMP: But some people aren't taking it. The ones - the ones that get very sick, and go to the hospital, are the ones, who don't take their vaccine. But it's still their choice.

[21:20:00]

And if you take the vaccine, you are protected. Look, the results of the vaccine are very good. And, if you do get it, it's a very minor form. People aren't dying, when they take the vaccine.

(END VIDEO CLIP)

SMERCONISH: Traditional political wisdom is to play up your accomplishments. And the vaccines certainly are that, for Trump. So, the advice he's getting directly, from people like Bill O'Reilly makes perfect sense to me.

(BEGIN VIDEO CLIP)

BILL O'REILLY, FORMER FOX NEWS HOST: I told him that today. He called me. And I said "This is good for you. This is good that people see another side of you, not a political side. You told the truth. You believe in the vax. Your administration did it. And you should take credit for it."

DAN ABRAMS, NEWSNATION HOST, "DAN ABRAMS LIVE": Well? O'REILLY: Because it did save, I don't know, hundreds of thousands of lives?

(END VIDEO CLIP)

SMERCONISH: But just this week, O'Reilly saw firsthand that some Trump loyalists don't like hearing that he got the booster.

(BEGIN VIDEO CLIP)

O'REILLY: Both the President and I are vaxxed.

And did you get the booster?

TRUMP: Yes.

O'REILLY: I got it too.

(CROWD JEERS)

O'REILLY: OK. So?

TRUMP: Don't! Don't! Don't! Don't! Don't! Don't! Don't! No! No! That's all right. This is a very tiny group over there.

(END VIDEO CLIP)

SMERCONISH: Scott Jennings joins me now, to dissect. What's going on here, Scott?

SCOTT JENNINGS, CNN POLITICAL COMMENTATOR, FORMER SPECIAL ASSISTANT TO PRESIDENT GEORGE W. BUSH, COLUMNIST, USA TODAY: Well, I think President Trump, first of all, should be credited, for saying the right thing.

And I think, to be fair to him, he has said this, throughout the year, not as forcefully, as he had in the past week.

But, in February, "Everybody get your shot." March, "I would recommend it." April, "The vaccine is a great thing." July, "I recommend you take it." August, "Once you get the vaccine, you get better."

So, throughout the year, since he left office, he has said the right thing, on the vaccine. What's true, this week, I think, Michael is that it's been far more forceful, and it's been done, in the face, of some booing.

And it was done in an interview, in which the interviewer, Candace Owens, was about to unfurl, a massive conspiracy theory, and misinformation, about the vaccine. And he interrupted her. And he stopped her. And he corrected her.

And he forcefully made the case for the vaccine. That's what's different, is the forceful nature of it. And I think, frankly, it's because he sees advantage in this. He thinks Joe Biden is failing.

SMERCONISH: I--

JENNINGS: He thinks he's flailing.

SMERCONISH: Yes.

JENNINGS: He thinks there's room, to run politically. And he is taking advantage of it.

SMERCONISH: I don't question the legitimacy of your citations. I just wish he had been doing this all along.

And, politically speaking, I've always thought it was the stronger play. That base is not going to abandon him. And why wouldn't he take credit, for what is arguably, the greatest accomplishment that occurred, on his watch?

I mean, maybe it's a realization now, of what I just said, that he's in a very good position, to take that nomination, if he wants it. So, why not go ahead, and lay claim to it?

JENNINGS: Well, you raise a point, about his relationship, with his base. And, in many cases, he didn't lead the base. The base lead him. It's one of the core reasons, he was never able to make a big deal on immigration. A deal was there to be made, but he feared backlash, from his base.

And so, I think, on this particular case, what's noteworthy is, is that he's apparently set that fear aside, and he's decided to be more forceful, about something, on which his base feels very passionate, which is, this vaccine hesitancy or anti-vaccination, all together.

So, it's noteworthy that he is standing up to them, and trying to lead them. Now the question is, will it cause anybody to change their behavior?

I've always been skeptical that people, who don't want the vaccine today, are waiting for any politician, to tell them what to do, or to get medical advice from a politician. But it is a good thing--

SMERCONISH: Well I'd like to find out.

JENNINGS: --that he's saying what he's saying. And he's not allowing - he's not allowing himself, to be led, down a very, very negative road, when it comes to - this point she was making, "Well, people took the vaccine, more people are dying," I mean, it's ridiculous. It's bunk. He knows it.

SMERCONISH: So - so--

JENNINGS: And it was good that he stood up for it.

SMERCONISH: --my view is, he ought to be speaking more about this issue, in the very manner that he did, and not another issue, for which we're going to see an anniversary, in the first week of January.

Let me put on the screen, something Karl Rove wrote, in "The Wall Street Journal" that resonates with me.

He said, "Still, Mr. Trump's political sway won't be measured only in primary victories but also in how many of his favorites fare in general elections in swing states and competitive districts."

Here's the key part. "All these candidates face a critical choice: Should they focus on Mr. Trump's claims that the 2020 election was stolen to protect their endorsement? Or should they make their race about providing a check on President Biden and risk incurring Mr. Trump's wrath?"

My point, Scott, is this. Trump ought to be talking all about, Operation Warp Speed, and not re-litigating the events of January 6. What are your thoughts?

JENNINGS: Yes, totally agree with you. The Operation Warp Speed was his greatest achievement, one of the greatest achievements of any recent presidency, especially in the face of what we were looking at, with the Coronavirus, unprecedented crisis, facing the country.

His continued focus on January 6, is going to hurt him, in the future, because if he does run for president again, there's going to be a reckoning. And the reckoning is this.

Will the American people intrust someone, who, frankly, in my opinion, violated their oath of office, on that particular day, with the most awesome political power, on the face of the earth, once again?

[21:25:00]

If he runs, he's going to be reckoned with that question. If he doesn't run, a Republican will be having to reckon with that question, as well. I don't know that it will be as impactful, in the midterms. I agree with Karl that you should focus on being a check on Biden, not being a conspiracy theorist, about the election.

Where the reckoning comes, though, is in 2024, when the race, for the White House, demands an answer. "Will you act the way you acted on January 6? Or will you put that aside and admit you were wrong, it was wrong, and the election was fair? "

SMERCONISH: Never! Never, do I see him saying that, even though it's the right answer.

Scott Jennings, thank you so much for being here. I really appreciate it.

JENNINGS: And, by the way? By the way? Of course.

SMERCONISH: Yes.

JENNINGS: And, by the way, what you just said is--

SMERCONISH: Yes.

JENNINGS: --this is - that makes him the most - that makes him the most limiting Republican, to be nominated. Because if you're unwilling, to admit what you did, was, frankly, a violation of your oath of office, it limits the number of votes, you can get. He's already lost the popular vote, twice. It virtually guarantees, he'd lose it again.

SMERCONISH: O'Reilly gave him good advice.

I say this, to my radio audience. And sometimes, they misinterpret what I'm saying. You may not agree with his list of accomplishments, because ideologically, you don't buy into them. But he has a list of accomplishments, starting with the Supreme Court. And he ought to be talking politically about that. And not this.

Thank you. Appreciate your being here.

JENNINGS: Thanks.

SMERCONISH: Social media. What do we got?

"It will move his supporters toward DeSantis."

It might. It might. I'm not sure. I mean, DeSantis is obviously not doing what Trump is now doing, in this regard. And DeSantis is not alone. But I think DeSantis can't pursue the nomination, if Trump wants it.

I've said consistently that if Donald Trump wants it, and is healthy, solvent, unindicted, then it's his. And nobody could stop him, from securing the nomination. And I'll stand by that. As for a general, I have no idea.

For the second time, this year, a White former Minnesota Police officer convicted, in the death of a Black man. What do the guilty verdicts, in Kim Potter's manslaughter trial, mean, for Police, nationwide, after she said she mistakenly drew a gun, instead of a Taser, and killed Daunte Wright?

Legal perspective, from Paul Callan, is next.

[21:30:00]

(COMMERCIAL BREAK)

SMERCONISH: After 27 hours of deliberation, jurors found Kim Potter, the former Minnesota police officer, guilty, on both counts, first and second degree manslaughter.

Remember, back in April, she shot and killed 20-year-old Daunte Wright, during a traffic stop, after she said, she accidentally drew her gun, instead of a Taser, as seen, in this disturbing body cam video.

(BEGIN VIDEO CLIP)

KIM POTTER, FORMER POLICE OFFICER: I'll tase you.

I'll tase you.

Taser! Taser! Taser!

UNIDENTIFIED MALE: Oh, man!

POTTER: Oh my (BLEEP)! I just shot him!

(END VIDEO CLIP)

SMERCONISH: CNN Legal Analyst, Paul Callan, joins me now.

Paul, I was wrong, about the outcome, in this one. I thought they were hung. How about you?

PAUL CALLAN, CNN LEGAL ANALYST, CRIMINAL DEFENSE ATTORNEY, FORMER PROSECUTOR: You know, Michael? I had the same feeling that it was going to be a hung jury. And I felt that way, and probably, you did as well, because historically, juries give cops the benefit of the doubt, when it's a close case.

And her immediate reaction, and sorrow, for the shooting suggested that it was in fact, an accident. But sometimes, as the prosecutor said, an accident can be a crime as well. And that's what the jury found, in this case.

SMERCONISH: One of the outs that jurors could have given her was to accept the defense argument that even if it were the gun, she intended to use, that was justified. But they didn't buy that.

CALLAN: Yes. They could have gone with that defense, because Daunte Wright was, when they were trying to handcuff him, and he was being - he was picked up, for a legitimate reason.

They made the stop. And then they found out he had an outstanding warrant. And it was a warrant, actually, for waving a gun, in a public place. And he then jumped back into the car, and was going to pull away.

And that's only when she intervened, with what she thought was a Taser, but, of course, it was her Glock, and killed Daunte Wright.

SMERCONISH: Do you give advice to clients, about how to look for a mug shot? And if so, what is it?

CALLAN: Well, I've had some celebrity clients, in the past. And so, I can't comment on that.

SMERCONISH: Wait. Wait a minute.

CALLAN: But, no, I--

SMERCONISH: Was Nick - was Nick Nolte - was Nick Nolte one of them? Because we all remember the Nick Nolte shot.

CALLAN: Yes. Yes. No. Those mug shots always become classics. No, I can't say that I ever have given advice to them. I can tell you this, though. My brother, who works for the NYPD, and takes mug shots, the advice he gives people, if they don't do what he tells them? They can come back, in 24 hours, and he sends them back to a cell. And then, they're very cooperative, when they come back. They're good-looking.

SMERCONISH: Well, I don't - Paul, I don't know, if you have, what we call, return. I don't know if you can see the Kim Potter mug shot that was taken today.

But I don't know. It's just - it's not what we're accustomed to. She's smiling. She looks good. She's just been convicted on both counts. It's not what we're accustomed to seeing. And I just - I just wondered what your reaction would be.

CALLAN: I don't have a return. So, I can't see what you're seeing, on screen.

But I know that, when the verdict came down, this afternoon, I was surprised, at her utter lack of emotion. Now remember, she broke down, after firing the fatal shot. But she also broke down, for an extensive period of time, in court. And here, the jury comes back.

SMERCONISH: Sure.

CALLAN: And finds her guilty, on all accounts. And she barely reacted to it at all. So, she's in a strange place, obviously, since this conviction.

SMERCONISH: Yes. No doubt.

Paul Callan, thank you so much, for being here. Wish you all the best for the holidays.

CALLAN: You too, Michael. Take care.

[21:35:00]

SMERCONISH: Next, we'll turn to a much different kind of legal battle underway. This one's right here, in my hometown of Philadelphia.

A mass exodus of prosecutors in the D.A.'s office, while the murder rate soars. Is this about clashing with the man, in charge, or a larger pattern, nationwide?

My guest, a former prosecutor, Chris Lynett, will tell us why he left, what he's seeing now, and what it means, for our justice system. That's next.

(COMMERCIAL BREAK)

SMERCONISH: A new breed of progressive prosecutors has taken the reins, in major cities, on both coasts. Philadelphia D.A., Larry Krasner, is one of them. And now, his city is being rocked by crime.

Congresswoman Mary Gay Scanlon, carjacked, in the city's FDR Park, just yesterday. Police say that carjackings, in the city, this year, are more than triple, the number from 2019. And that's on top of the city's already record-high murder rate.

[21:40:00]

It's so bad, "The Wall Street Journal" says, "Criminals feel it's urban hunting season." But even if Police catch the criminals, there may not be enough manpower, to put them behind bars.

"The Philadelphia Inquirer" started digging, into what it calls, the disarray of the District Attorney's office. The newspaper reports, the office lost 261 attorneys, during the first term of D.A. Larry Krasner. About 70 of those were attorneys recruited by Krasner. For some context, the office employs a total of only 340 lawyers.

We asked the D.A. for comment. But there was no response.

My next guest is a former assistant district attorney, who worked under Krasner.

Chris Lynett, thank you so much for being here.

Chris, is this a managerial issue or an ideological issue? Because the most stunning thing that I read, in "The Inquirer" coverage, was a quote, from another prosecutor, who has left, who said that Krasner would hire, "People who would cry after convicting someone."

CHRIS LYNETT, FORMER PHILADELPHIA ASSISTANT DISTRICT ATTORNEY: That's - well, first of all, thank you for having me on, Michael.

And it's both. It's a managerial issue that bleeds into the ideology. The top management, Larry Krasner, is just unaware, of what line prosecutors, need to do, every day, to make sure that justice is done, in Philadelphia courtrooms.

And to go off that, the ideology of the office has nothing to do with solving serious violent crime, in the City of Philadelphia, and everything to do with conviction integrity, exoneration, which is about 2 percent of what the office does.

So, it's just - it bleeds over, and it makes it an unbearable place to work, if you're really interested in doing good trial work and serving the people of Philadelphia well.

SMERCONISH: Something else that I learned. Nearly 60 percent of the lawyers, in the office, have joined the office, in the last four years. I mean, how could those, who are trying cases, have the requisite experience that's necessary?

LYNETT: They don't. And I worked with these people. So, I don't want to disparage them at all, because they are working really hard.

But the fact is, is that the Office has undergone a massive brain drain. You've seen seniority people, people with high seniority, tons of trial experience, leave in droves. And so, there's no one to go to. When I was in jury trials, I've only been there for four years. I was the most - one of the most senior attorneys, in the unit. And that's a stressor, for me. That was a stressor for my colleagues.

But it was a stressor too, on the victims, because they had to deal with inexperienced prosecutors. They didn't pick the prosecutors. We were just assigned to them. And that made them question, whether they should participate, in the justice system, at all.

SMERCONISH: So, another quote, from the piece, from a prosecutor, no longer there. "Krasner more interested in protecting defendants than crime victims - than everyday citizens and crime victims."

I mean, it sounds like the sort of thing that you'd say in a 30-secpnd commercial, against someone, you were running against. But, in this case, it's people, who are in the office, who are saying it.

LYNETT: Absolutely. And they're people, who really care, and really work hard.

And it's interesting, you referenced the 30-second commercial. Everything in the office is politics. It's like every meeting, is a public speech, for Larry, to advertise his campaign.

It's never about, "Here's the new technology you have, to make your cases easier to try. Here's the new support system, we have for you, to make sure your victims, get the correct outreach. Here's the new technology. We're going to make it easier to present cases to juries."

So, it was really just all about ideology, and nothing about getting the people, on the ground, what they needed, to do the jobs that they needed to do.

SMERCONISH: Chris, a final thought. It's not just Philadelphia. There's been this trend, toward electing progressive prosecutors, across the country. I just happen to know better, what's going on, in my own backyard than I do the other cities that we see so much about, in the news.

What do you think - what do you think accounts for this pendulum swing? And will it swing back, given stories like this?

LYNETT: I think there's a great risk that it could swing back. Because the fact is, is that it's one of those things, where it was, you had an issue with mass incarceration, for non-violent crimes. That is not a controversial issue anymore. And that's going by the wayside.

But the question is, is baseline competence, is can these progressive prosecutors, bring in people, to try these cases, fairly and justly, so that the people feel that they can trust the process? And so far, in Philadelphia, that answer, is clearly no.

SMERCONISH: Chris Lynett, thank you so much for being here.

LYNETT: Thank you very much for having me. Have a great holiday.

SMERCONISH: You too.

OK. Favorite story of the week. I have an early holiday treat for you. Check this out.

(BEGIN VIDEO CLIP)

(VIDEO - HOLY TRINITY SCHOOL - STUDENTS CHEERING WILDLY, FOR THIRD GRADE TEACHER, KATHLEEN FITZPATRICK, AFTER SHE MADE THE FULL-COURT SHOT)

(END VIDEO CLIP)

SMERCONISH: So, why are those students cheering so wildly, for third grade teacher Kathleen Fitzpatrick?

She is here. And I'll show you, what led to that incredible moment of joy, next.

[21:45:00]

(COMMERCIAL BREAK)

SMERCONISH: All right, I want to show you, what might just be, the most unforgettable cup of hot chocolate that some third graders, in Washington D.C., will ever drink.

The reason that the cocoa is so good begins with a recess for the record books. It started with a proposal. Ms. Fitz promised her students, hot chocolate for everyone, if she made the full-court shot.

Watch for yourself.

(BEGIN VIDEO CLIP)

(VIDEO - HOLY TRINITY SCHOOL - STUDENTS CHEERING WILDLY, FOR THIRD GRADE TEACHER, KATHLEEN FITZPATRICK, AFTER SHE MADE THE FULL-COURT SHOT)

(END VIDEO CLIP)

SMERCONISH: Ms. Fitz, as she is known, is Kathleen Fitzpatrick. And she joins me now.

Ms. Fitz, 8 million views, at least the last time, I checked. But you should know, I'm good for at least a million of them, because I can't stop watching. Who was more excited? You or those kids?

KATHLEEN FITZPATRICK, THIRD GRADE TEACHER, FORMER COLLEGE BASKETBALL PLAYER: I think it was a tie, between who was more excited.

[21:50:00]

I think, like I was shocked that it went in. I mean, I knew it was going to go in. But, at the same time, I was just hoping, because I had promised them, hot chocolate. So, it had to go in.

SMERCONISH: Hey? I know you are the pride of Delco. You're like the biggest thing, to come out of Delco, since Mare of Easttown.

Am I right? You're doing a little bit of a rocky dance there. Is that a Philly thing?

FITZPATRICK: You know? I guess you could say it's a Philly thing. I think it's just my pure excitement that I had made the shot.

SMERCONISH: You played basketball at both St. Joe's and Rutgers. Did you ever hit a buzzer-beater?

FITZPATRICK: I have, yes.

SMERCONISH: Which was more exciting. This one, or whichever one you're thinking of?

FITZPATRICK: I had - I had a buzzer-beater, at Rutgers. But I think this was more exciting than the buzzer-beater at Rutgers.

SMERCONISH: Who is reaching out for you? Like I have to believe, everybody, who knows you, is like, "Oh, my God! I saw the video!" So, I assume it's like old friends and stuff. But anybody famous. I mean, tell me what's going on, in your world.

FITZPATRICK: I'm actually not very good on social media. I don't even have a Twitter. I have an Instagram. So, my few friends have been updating me, like "These people are tweeting this. These people are posting it."

So, I've been hearing it from like my closest friends, and my brothers, who are keeping me updated, on everything. But it's just - it's pretty crazy and surreal that it's gotten to this point.

SMERCONISH: When - so, when did it hit you? This was what, two days ago, right? I think you're on break today. Today's the first day of break.

FITZPATRICK: Yes.

SMERCONISH: So like, when did you realize, "Oh my, God! That shot that I made is now being viewed around the planet!"

FITZPATRICK: This shot happened on Friday. And I promised them--

SMERCONISH: Oh?

FITZPATRICK: --the hot chocolate, on Monday. And the video was posted, on our school's account, I think, it was, Sunday night. So, it really, like Monday, and a little Tuesday, was kind of slow.

And then yesterday, in school, a lot of kids were saying things, like "Ms. Fitz, this video has gone viral!" And kids can exaggerate. So like, "No way, no way." And then, my friends and family started reaching out, like "No. This thing is viral."

So, it really was yesterday, and then today that it really hit me like, "Oh, this thing has gone pretty viral." SMERCONISH: Well, you paid the debt. That was my next question. I'm glad that you've settled it.

And one just final point, if I might? We live in difficult times, for a variety of reasons, not the least of which is the Pandemic. And this gave me such joy, and has given, so many people, such joy.

It's the craziest thing, like you sunk this long shot, on a playground, in Washington. And it just takes my mind off everything else that frankly, I've been discussing here tonight. So, thanks for that moment of joy.

FITZPATRICK: Of course. I think we can all use a little bit of joy and laughter, these days. So, we are glad we can do that for everyone.

SMERCONISH: Have a great holiday. Thank you so much, Kathleen Fitzpatrick.

FITZPATRICK: You as well. Thank you.

SMERCONISH: We'll be right back, with reaction, to tonight's program.

[21:55:00]

(COMMERCIAL BREAK)

SMERCONISH: Thanks so much for watching. Here are some of the social media reaction that has come in, during the course of the program.

"They haven't even sign - signed a contract with the manufacturers, but will have them in 30 days? If all it takes is 30 days, why hasn't Joe done this already, or sooner, when we really need them? This is BS!"

I don't think we're getting them, in January. I think that's pretty clear, right? They haven't signed a contract. That was reported today. The website is not yet functional, because they haven't signed a contract, how could it be et cetera, et cetera, et cetera.

So, 500 million doesn't seem like it's going to get here anytime soon. And perhaps, by the time, we do have them, this Omicron wave will have passed. I hope they're able to turn it around. I hope they were able to generate them quickly.

And I found that interesting tonight, because we had Dr. Mina, who was one of the participants, at that October 22 White House online meeting, where they talked about 700-plus million, being necessary.

But they didn't order them at that time, either. So, sounds like there's enough blame to go around. Let's hope they get it sorted out, jiffy-quick.

What else came in tonight?

"Smerconish, people are giving 45 credit for his pivot on vaccines. I see it as damage control. He's trying to clean up his position on things because he is seriously considering a 2024 run. People, please don't be fooled."

So, ThatBroadwayCostumeGuy? Love your handle, by the way. Look, I talked about this, with Scott Jennings.

And Scott, very quickly, rattled off a number of instances, where Donald Trump has spoken, of the need, for vaccination, in the past. I'd love to go through each one of those. I'm sure that he did say it. But I'll bet he was questioned, before it was prompted, right?

Here's the point I'm trying to make. I wish President Trump had been saying that all along. That would be in the nation's best interest, and frankly, in his own political best interest.

I've thought that he's just been afraid, to offend his base, because I remember him saying something previously, I think it was in Alabama, and there was blowback. I remember Lindsey Graham, in South Carolina, doing an event, outdoors, at a country club, I want to say, referencing vaccination. The audience reacted negatively. He backed off.

So, I'll take what President Trump is offering. And frankly, I wish he'd been saying it a heck of a lot sooner than maybe he realizes now. You know what? It's not only good for the country, but there's a political upside as well, because the base isn't going to go anywhere. Those are just my two cents!

Thank you so much for watching. I'll be back here, on Monday night. Merry Christmas to everybody!