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Smerconish

Who Will Get The First COVID-19 Vaccine Doses?; Kaepernick Calls For Convicted Cop Killer's Release; Will President Trump Ever Concede?; When Will The Presidential Vote Be Finalized?; Fact-Checking Trump Legal Team's Voter Fraud Claims. Aired 9-10a ET

Aired November 21, 2020 - 09:00   ET

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

[09:00:00]

MICHAEL SMERCONISH, CNN ANCHOR: Will he ever concede? I'm Michael Smerconish in Philadelphia. Nobody should be surprised by the tactics of the Trump campaign in contesting the election results. The president clearly had this in mind months ago. Here he is in Pennsylvania back in September.

(BEGIN VIDEO CLIP)

DONALD TRUMP, PRESIDENT OF THE UNITED STATES: And I don't want to end up in the Supreme Court and I don't want to go back to Congress either even though we have an advantage if we go back to Congress. Does everyone understand that? I think it's 26 to 22 or something because it's counted one vote per state.

(END VIDEO CLIP)

SMERCONISH: The last point about Congress is sometimes the subject of confusion. Yes, Democrats control the House of Representatives, but under the 12th Amendment, every state delegation gets just one vote in the House of Representatives and of the 50 state delegations, 26 are controlled by Republicans. So that's his play, to get state legislatures and then the Republican Congress to supplant the will of the people.

It's extremely doubtful we ever get that far. There's no indication the president's efforts to gum up the works by getting alternative electors slated will succeed. He leaned on Michigan legislators on Friday and is said to be trying to do likewise with Pennsylvanians, although Pennsylvania lawmakers say they haven't received an invitation to the White House.

After meeting with the president, the Michigan Senate leader and House speaker said they would follow the law and normal process. There's just no basis to do otherwise. The Giuliani-led press conference on Thursday was a fire hose of Festivus, a presidential level airing of grievances mixed with denigration of the media for lack of investigation.

If reference to fraud were a drinking game in Rudy's presser, we'd all have been under the table within 10 minutes, notwithstanding that in federal court in Pennsylvania on Tuesday, Giuliani acknowledged to a federal judge that his case there was not alleging fraud. Some of the allegations were fantastical such as Sidney Powell's claim that the election result was being manipulated by communists, Antifa, George Soros and a seven-year-dead Hugo Chavez. Even Tucker Carlson was alienated by the baseless nature of that claim.

Other charges seemed troublesome if true but have already been discounted. For example, Giuliani said that in some areas, more votes were cast than there are voters.

(BEGIN VIDEO CLIP)

RUDY GIULIANI, PRESIDENT TRUMP'S ATTORNEY: Well, in Michigan and Wisconsin, we have over votes in numerous precincts. Up 150 200 percent and 300 percent.

SIDNEY POWELL, AMERICAN ATTORNEY: Up to 350 percent in some places.

(END VIDEO CLIP)

SMERCONISH: The source of that information was this affidavit filed in Georgia. Trouble is, as pointed out by "Power Line" blog, the data mistook Michigan for Minnesota. Those are all locales in Minnesota and even if the president's lawyers could identify widespread irregularities attributable to malfeasance, they offered absolutely zero proof of any interconnection. Instead, Giuliani said, "This is a plan. You'd have to be a fool not to realize that."

Our election process can be simplified to these five steps -- voting, tabulation, certification, Electoral College, Congressional acceptance. The voting and tabulation are over. We're in the certification phase. Georgia, for example, certified its vote yesterday. Pennsylvania and Michigan will do so on Monday. The certification process should be insulated from further legal challenge on December 8. The Electoral College will vote on December 14, Congress will perform its function on January 6.

Each state certification represents a door rapidly closing on the president's prospects, but here's the real danger. Too many people are falling for the president's charade. According to Monmouth, three quarters, 77 percent of Trump backers say Biden's win was due to fraud and according to Reuters, 68 percent of Republicans were concerned that the election was rigged.

Conservative Kevin Williamson writing in the "National Review" said this, "This raises some uncomfortable questions for conservatives. One of those questions is how long are we going to keep pretending that this madness isn't madness? Another is how long will we continue to pretend that what's being broadcast by 'Fox News' and talk radio is political commentary rather than the most shameful, irresponsible and unpatriotic kind of sycophantic, for-profit propaganda?

A third is what exactly is the benefit for our ideas and for the country of making common cause with these lunatics and hucksters?"

To be clear, Williamson isn't denigrating the 71 million who voted for Trump, just the president's enablers who remain unwilling to tell the emperor that he has no clothes, which leads me to this week's survey question.

[09:05:00]

Please go to Smerconish.com this hour and answer this issue. Will President Trump ever concede?

Joining me now to discuss is Jessica Levinson, professor of law at Loyola Law School who specializes in election law. How unusual, Professor, is all of this?

JESSICA LEVINSON, PROFESSOR OF LAW, LOYOLA LAW SCHOOL: Hugely unusual. It's like if you look at a blue moon and then you see a pig flying past it, that's about where we are in terms of American history. We just don't see presidents and losing presidential candidates actively trying to subvert the democratic process this way, which is good. We're happy this is rare.

SMERCONISH: Is our system equipped to handle this kind of a challenge?

LEVINSON: We'll see. This is such a great question and as with so many things with the Trump administration, we're really seeing that it's a stress test on our system. Sometimes a stress test on our Constitution, sometimes a stress test now specifically on our electoral systems and we do see where there are cracks. We don't expect that a presidential candidate will try and pressure legislatures.

So are we equipped to handle this? We are if the guard rails hold. We are if legislatures, regardless of partisan affiliation, say I'm voting according to state law, if governors, regardless of party affiliation, say I'm certifying according to state law, not according to the political party I'm a member of, but according to the popular vote of my state.

SMERCONISH: You know that the Electoral College is constantly under attack. Where would we be in this scenario without the Electoral College?

LEVINSON: Probably you and I would not be talking because it would be absolutely clear that former Vice President Biden had won. I believe he'll won by -- win by about 6 million votes and part of the problem is the Electoral College, part of the problem is that we didn't know what was going to happen in the Electoral College until too long after election night, that we didn't start counting in some cases, like Pennsylvania, where it became clear what was going to happen until Election Day.

You can change that by state law. One other thing you can do, state by state without constitutionally abolishing the Electoral College, you can just say we're not doing winner take all anymore and then you don't waste millions of votes like, for instance, you do in California where Joe Biden wins by 5 million. You only need to win by one vote.

SMERCONISH: So I hear your observation and I get it because the margin in the popular vote is 6 plus million. If, however, that margin were smaller and there were questions being raised about the vote in particular states, we'd be looking at the prospect of a nationwide recount. This is a hypothetical that I'm offering you. I'm not saying that this applies to this case, but it's made me realize that the cordoning off, the walling off that the Electoral College provides has some advantage.

LEVINSON: Absolutely. We've seen a couple of situations where there are advantages to institutions that we used to say, this makes no sense. I used to say, it's so messy that we don't have any centralization of our elections, that everything is not just 50 states because under the Constitution, it says states, you determine the time, place and manner of elections. That's why we have one set of rules in California, another in Texas, but it's really county by county.

Now we're seeing that that dispersal actually provides some protection. If, for instance, you have a presidential candidate that's trying to exert a lot of pressure and in fact undue influence, the dispersion protects all of us. Little bit of the same thing with the Electoral College.

SMERCONISH: OK. So in lay terms, when will this be over in?

LEVINSON: Well, it depends on your risk tolerance level. So for me, it actually is very, very close to over. We have a couple of deadlines coming up where people can, if they support Vice President Biden, they can breathe easier, easier, easier. December 8th is the so-called safe harbor deadline. That's the deadline under which, as you said, states have to certify their election results.

Six days later, December 14th, states actually vote -- the Electoral College actually votes -- excuse me -- and then January 6, Congress, a joint session of Congress looks and they say, oh, Joe Biden reached 270, January 20th at noon Eastern time, there's the inauguration. The big day coming up will be December 8th. If everything is certified, if we fall within that federal safe harbor, I really think that we're incredibly close to done, done, done.

SMERCONISH: And as I said at the outset, apparently the president was unsuccessful in his cajoling, if that's what he was seeking to do at the White House yesterday, with the Michigan representatives, but even if he'd been successful, Michigan alone is not enough to change the outcome of where we're headed, this trajectory.

[09:10:00]

By my calculation, he would have needed two other state legislatures to do likewise and withstand all the challenges. Am I right?

LEVINSON: Absolutely right. So we're not looking at an election where -- we're not in the Bush V. Gore 2000 election where everything is down to Florida, Florida, Florida. In this case ...

SMERCONISH: Right.

LEVINSON: ... 306 Electoral College votes, you need to flip a lot of states in a totally unconventional, arguably against state law sort of fashion. So you would probably need Michigan, Georgia, Arizona. I do not see it happening in these three states. Not only is it an incredibly aggressive power play, it's not even sure that you can play that kind of legal hardball. It's not even clear that Congress would accept those results.

I think that it's just becoming, you know, -- if you look in the distance, the possibility that we're going to have an election law professor fever dream is getting further and further away.

SMERCONISH: Professor Jessica Levinson, thank you so much for your analysis.

LEVINSON: Thank you.

SMERCONISH: What are your thoughts? Tweet me @Smerconish or go to my Facebook page. I'll read some throughout the course of the program. What do we have, Catherine? From Facebook, "It won't matter. Those who believe his story will continue to believe the election was stolen no matter what he says now." Bobbie, I don't agree with that. I don't believe that all 71 million -- and by the way, give him credit for the vote that he generated in excess of what he had in 2016.

I don't think that they're all lockstep and maybe I'm naive, but the polling data from Monmouth, the polling data from Reuters that I showed to you, that's in the immediate aftermath when emotions are still raw. I think unless there were to be some showing, and I can't conceive of what that showing would look like, but a factual evidentiary showing, I think a lot of those folks start to look differently at the president who could be leaving office with a totally different legacy.

Remember, I want to know what you think. Go to the website Smerconish.com. Answer the survey question this hour. Will he ever concede?

Still to come, at a press conference that I've made reference to, Rudy Giuliani and the president's legal team made wide-ranging claims of election fraud, including overvotes, truckloads of uncounted ballots and Venezuelan meddling. So what are the facts? We'll get to that.

And two highly effective COVID vaccines suddenly on the horizon, but when the shipments begin, where will they go and who gets the first doses? I'll speak to the chair of the CDC's committee in charge of those decisions.

Plus, Colin Kaepernick is calling for the release of Mumia Abu-Jamal who's serving a life sentence after being convicted of killing a Philadelphia police officer in 1981. I happen to have written a best- selling book on that case and there are a couple of things I need to say to Colin Kaepernick.

(COMMERCIAL BREAK)

[09:00:15]

(COMMERCIAL BREAK) SMERCONISH: With the president refusing to concede, let's take a closer look at that wild press conference where the Trump campaign legal team laid out its case for what they referred to as widespread voter fraud. What were the actual claims and was there any shred of merit to be found?

Joining me now to fact check is "PolitiFact" editor-in-chief Angie Drobnic Holan. She was a reporter on the "PolitiFact" team that won the 2009 Pulitzer Prize for national reporting. Angie, so great to see you again. So I watched or listened to the totality of that presser and I heard these repeated claims that, oh, the fake news media won't even talk about it.

I'm dying to talk about every one of these assertions because many of them, when you heard them, you thought, wow, that's really problematic if it's true. For example, because I want to show you a number of them, there was an allegation that Rudy Giuliani made about people who voted in Pittsburgh. Roll it.

(BEGIN VIDEO CLIP)

GIULIANI: We have 17,000 provisional ballots cast in Pittsburgh. Do you know what a provisional ballot is? Provisional ballot usually happens this way and about 15 of the 17,000 happened this way. You walk in and you say I'm here to vote today. Oh, Mr. Giuliani you already voted. I did? I don't remember voting. Oh, yes, yes. You cast an absentee ballot. No, I didn't. Yes, you did. No, I didn't. Yes, you did.

(END VIDEO CLIP)

SMERCONISH: I mean, the allegation is that some big city Democratic Paul (ph) had already voted for Mr. Giuliani. What are the facts?

ANGIE DROBNIC HOLAN, EDITOR-IN-CHIEF, POLITIFACT: The facts are that provisional ballots are a normal part of the election process. They can happen for a number of reasons. Somebody signs in the wrong place, they sign on the wrong line or they didn't use an outer envelope that was required. Different places have different rules and if you miss, you end up with a provisional ballot, but it doesn't mean that there was fraud, it's more like user error.

And the thing that I noticed about this claim about Pittsburgh is the number of provisional ballots that are at issue are smaller than Joe Biden's margin right now in the state. So even if every provisional ballot went for Donald Trump, which is unlikely, it would not change the outcome of the election and suggesting that provisional ballots are not a normal part of the process, that's just wrong.

SMERCONISH: Another allegation was one of widespread foreign meddling and intervention. Watch this.

(BEGIN VIDEO CLIP)

GIULIANI: I mean, you're actually seriously going to want me to take seriously the secretary of state of Michigan? when Michigan -- when Michigan -- when the secretary of state of Michigan never bothered to find out that the votes in her state were being count -- being counted in Germany by a Venezuelan company?

(END VIDEO CLIP)

[09:20:04]

SMERCONISH: Were Michigan votes being counted in Germany by a Venezuelan company?

DROBNIC HOLAN: No. Absolutely not. The Michigan votes were counted in Michigan by Michigan poll workers. This is something like spun out of -- out of whole cloth. I don't know why he thinks this is justified in saying this and the companies at issue that have done a lot of the computerized voting in the country are -- one is Canadian and one is U.S.. So it's just -- what is he talking about? It's not clear at all, but we do know that local Michigan officials handled the vote counting.

SMERCONISH: So I also heard in the presser what I regard as the 2020 version of people were bussed in to vote. In fact, I think that allegation has been made about this election as well. Only this time, the locale was Detroit and it was a truck pulling up that was supposed to be food, but really there were ballots. Here. I'll let Rudy tell it.

(BEGIN VIDEO CLIP)

GIULIANI: They swear to is that at 4:30 in the morning, a truck pulled up to the Detroit center where they were counting ballots. The people thought it was food, so they all ran to the truck. Wasn't food. It was thousands and thousands of ballots.

(END VIDEO CLIP)

SMERCONISH: I mean, this is the sort of thing, Angie, that people hear and I think they say, holy crap, this whole thing was rigged. Is there any truth to that?

DROBNIC HOLAN: This one was the subject of a lawsuit in Michigan and it's pretty interesting because the judge's opinion is online and you can -- you can read through it. There was someone who made this assertion, but there were multiple other people who said, I was there, this did not happen. The judge went through all of these affidavits from people who said there was fraud and then people who said there weren't and he concluded that there wasn't.

The people who were making these allegations of fraud, they didn't have details as to time or place or who was involved. They were just kind of allegations and then the people rebutting the allegations had details, they had the procedures, they had multiple witnesses. So the judge threw the case out and it was appealed and the appeal didn't go anywhere either. So this one, the judge said it was not credible and we found no reason to think that the judge was wrong.

SMERCONISH: OK. This one I regard as the kitchen sink of allegations. This is -- this is Giuliani's co-counsel Sidney Powell throwing in, you know, Soros, Antifa, the Squad, AOC -- actually I don't know if they threw them in, but you'll watch and you'll get the gist of it.

(BEGIN VIDEO CLIP)

POWELL: What we are really dealing with here and uncovering more by the day is the massive influence of communist money through Venezuela, Cuba and likely China in the interference with our elections here in the United States. The Dominion voting systems, the Smartmatic technology software and the software that goes in other computerized voting systems here as well, not just Dominion, were created in Venezuela at the direction of Hugo Chavez to make sure he never lost an election.

(END VIDEO CLIP)

SMERCONISH: So this is the one that caused me to regard this as the fire hose of Festivus, for you Seinfeld fans. Any shred of truth to any of that?

DROBNIC HOLAN: We haven't been able to find any. I mean, this is conspiracy thinking at its most extensive. These two companies in question have track records of operating in the United States. They've participated in some of the activities this year to ensure that the voting process was safe and secure and they've been inundated with these false claims.

We've looked for connections to these left-wing figures. We haven't found them. It's just -- it's hard to say where this comes from because there's not a shred of evidence to support that Hugo Chavez had anything to do with the 2020 elections.

SMERCONISH: And as I watched, I kept wondering, OK, if there were this garden variety of irregularities, you know, wherein lies the inner connection? And Mayor Giuliani's answer was to say, well, you'd be a fool not to understand that there had to have been some plan that, you know, reached all the way up to Joe Biden. I guess I'm that fool. Angie, nice to see you again. Thank you so much for being here.

DROBNIC HOLAN: Thanks.

SMERCONISH: Via social media, what do we have, Catherine? I think this comes from Twitter. "Why would Trump's legal team give the media any evidence for y'all to misconstrue and twist it to fit your narrative? That's what a court of law is for." Well, Scott Brown, let me give you a concrete answer to that. It's because Georgia certified its vote yesterday and Michigan and Pennsylvania will certify their vote on Monday.

[09:25:05]

So it's like here and now, lay it out. And I get the argument that they made. You know, I'm sure that in some quarters, people don't want to hear whatever they've been able to gather in terms of intelligence. I'd love to see it, but everything I've looked at and the monitoring that I've done of all of these court proceedings so far tells me there's just no there there and at a certain point, having had your opportunity to lay it all out, it's time to move on.

I want to remind you, go to my website at Smerconish.com. Answer the survey question this week. Very simply, will President Trump ever concede?

Up ahead, while the pandemic worsens, at least one vaccine could be reaching Americans in record time, but with a limited supply of doses until at least spring of next year, tough choices will need to be made to determine who gets the first shots. I'm about to speak to Dr. Jose Romero. He's the chair of the CDC committee in charge of making that call.

(COMMERCIAL BREAK)

[09:30:19]

SMERCONISH: The coronavirus pandemic getting much worse and very quickly. The country has reported 2.7 million infections since just the beginning of this month. Yesterday was another record for the highest one-day total during the pandemic. More than 195,000 new infections reported. And more than 82,000 people are being treated in hospitals.

It's so bad that the CDC has advised Americans not to travel for thanksgiving. But will help soon be on the way? Pfizer applied for FDA emergency use authorization for its coronavirus vaccine. Moderna expected to follow suit soon.

If given the green light which could happen around December 10, they could be distributed to states. In the best-case scenario, about 40 million Americans would get their first dose in December. Their second dose in January. By March, another 110 million doses are promised, that's according to Dr. Larry Corey who is leading the coronavirus vaccine trials network in the United States. But nobody can be vaccinated until the CDC Advisory Committee on Immunization Practices reviews the data and answers the all-important question, which groups will get the vaccine first?

Joining me now is the chair of that committee is Dr. Jose Romero. He's also the Arkansas secretary of health. Dr. Romero, thanks so much for being here. Who goes first?

DR. JOSE ROMERO, CHAIR, CDC'S ADVISORY COMMITTEE ON IMMUNIZATION PRACTICES: Thank you for having me.

Deliberations are certainly under way at this time. And we have a number of categories of individuals that may go in the first round of vaccinations. Among those are health care providers, individuals in high-risk conditions, individuals living in nursing homes, our first responders, essential personnel, individuals over 65 years of age. Those are the groups of individuals that are in there. And right now, the ACIP, the Advisory Committee on Immunization Practices is deliberating and looking at data to see how we will stratify that group of individuals.

SMERCONISH: It sounds fairly straightforward but as I've thought this through, sometimes the calls are in a gray area. For example, if I'm a custodian at a hospital am I regarded as a health care worker? Maybe I work in the cafeteria in a medical setting -- like how far do we extend the definition?

ROMERO: You are exactly right. You are a health care worker if you happen to be in that environment, taking care of patients or being exposed to patients with COVID. You're an essential personnel within that institution.

So take, for example, someone in the environmental services area. They have to turn over those rooms very quickly for an emergency room to get the next patient in, so they could be exposed. If you're delivering trays then you could be exposed. You are an individual that is at risk for acquisition of COVID.

So the inclusion of health care personnel is writ large. So we're looking at all individuals within the institution that will come in contact or could come in contact with those individuals. And can and are necessary to keep the health care system running.

SMERCONISH: Dr. Romero, what you're coming up with are recommendations which, by definition, don't necessarily need to be followed in the states. Is that true? And if so, how concerned are you that some states might go rogue?

ROMERO: So, you are correct. So, we make recommendations. And those recommendations are sent to the director of the CDC who in turn then decides if they are appropriate or not. Those recommendations then are sent out, into the states, and there is some -- there is some wiggle room in there.

We've discussed this. That states may prioritize individuals as they feel important, due to local issues. For the most part, ACIP recommendations are followed. So, I think that states will adhere to the recommendations, for the most part.

SMERCONISH: Should economic considerations be taken into account as these decisions are being made? In other words, would it be in your opinion a proper mind-set to say, well, this is a vital economy, a vital part of the economy in state X or Y. Therefore, to move to the front of the line, those who work meat packing -- how about if I give awe concrete example? Would it be fair in some circumstances for a state to say, we're going to protect our meat packers at the same time we're protecting the elderly?

ROMERO: So, meat packers are considered essential personnel. Without them, we don't have food to eat. So, independent of the economic issues they're essential for keeping the economy going, for keeping society going.

[09:35:00]

So, we don't really look at these issues of cost. We look more at who is going to receive the best impact from these vaccines, from the vaccine delivery. SMERCONISH: A little bit out of the box, the subject of acquaintance immunization. I was unfamiliar with this until I read a piece by a fellow by the name of Christopher Cox in "Wired." Put it up on the screen, Catherine, so I can read it to Dr. Romero.

Here's the idea, "To knock out the super-spreaders, the ideal target for a vaccine would be someone with many contacts in different settings-someone with a big, multigenerational family, a job that led to a lot of mixing with strangers, and a busy social life. But how do we find these highly connected individuals across 50 states and 330 million people? This is where most public health officials get stuck."

Is there something to trying to identify the people who are more out and about, and active among us, not necessarily health care workers, not necessarily the elderly or pre-existing conditions but they're in contact with more people, therefore, perhaps, they need to be elevated in priority?

ROMERO: There may be some -- there may be some benefit in that, but we don't have a lot of data suggesting that immunizing these individuals would be beneficial to the entire population. The individuals that are being identified by the ACIP and it's not just the ACIP, the National Academy of Medicine has come out with their recommendations.

So, we're trying to identify those individuals that are essential for keeping the health care system going, that are essential for providing health care and identifying those populations -- I'm sorry -- immunizing those populations that we've already identified as a high risk for mortality or morbidity. So, I think at this point our focus is on the high-risk groups at this moment.

SMERCONISH: A quick final question, if I may, the field of dreams question, if you build it, will they come? How worried are you about some folks' reluctance to get vaccinated?

ROMERO: That's a very good question. We know that there is some reluctance for accepting a new vaccine among different population groups. It can as high as 50 percent depending on the surveys.

So, I do have some concern. I want to stress that the issue of safety of the vaccine has been paramount throughout the process both -- through all aspects. So, pharmaceutical manufacturers have issued statements about the importance of maintaining safety. The FDA will certainly look at safety as the paramount factor for licensure. And we will look the safety.

Even after the vaccine has been approved for use, there are systems in place now that will follow for safety signals into the future. So the public should understand that this is a safe vaccine --

SMERCONISH: If some -- if someone gets the vaccine --

ROMERO: This will be a --

(CROSSTALK) SMERCONISH: -- this time I mean. This time I mean it when I say it's my final question. If someone gets vaccinated, how will we know that? Are you going to have a certificate of some kind? Is there a pin that you get to wear? I mean, it would seem to me there would be access that you'll be granted to certain settings that other people would not? Quick final answer, if you can.

ROMERO: Yes, so, we will track in order -- every person that gets immunized we'll get a card and they will be entered into our vaccine registry database. We will be able to follow them and know who has been vaccinated and what vaccine they need to receive in the second dose.

SMERCONISH: Dr. Romero, that was great. Thank you, sir.

ROMERO: Thank you, sir.

SMERCONISH: Still to come, Mumia Abu-Jamal, he was convicted for the 1981 shooting and killing of a Philadelphia police officer named Daniel Faulkner. Those the years many celebrities have demanded his freedom and the latest is Colin Kaepernick. He like the others I argue is misinformed. And I've got a message for him. That's next.

(BEGIN VIDEO CLIP)

COLIN KAEPERNICK, FORMER NFL QUARTERBACK: Mumia is 66 years old. He is a grandfather. He is an elder with ailments. He is a human being that deserves to be free. Free Mumia.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

[09:43:17]

SMERCONISH: This is a message for Colin Kaepernick. And for what it's worth, I think you were blackballed from football for exercising your speech, and that's not right. Except in extreme circumstances no man should pay with his livelihood for speaking his mind. And I'm sure that's why no team has picked you up.

Then again, while I'm a casual fan, I'm a bit out of the element when it comes to Xs and Os of the NFL. And might I see that when it comes to Mumia Abu-Jamal you are similarly out of your depth. I see that you just called for immediate release of this convicted cop killer claiming that he was framed by a racist police department for the 1981 murder of Officer Danny Faulkner.

(BEGIN VIDEO CLIP)

KAEPERNICK: He had no record before he was arrested and framed for the death of a Philadelphia police officer. Since 1981, Mumia has maintained his innocence. His story has not changed.

Mumia was shot, brutalized, arrested and chained to a hospital bed. The first police officer assigned to him wrote in the report that the Negro male made no comment, as cited in Philly Mag. Yet 64 days into the investigation, another officer testified that Mumia had confessed to the killing. Mumia's story has not changed.

(END VIDEO CLIP)

SMERCONISH: This is the subject I know a little something about. You could say I literally wrote the book. This book. 2008, I co-authored "Murdered by Mumia." with Danny Faulkner's widow Maureen. It was briefly a "New York Times" bestseller. By the way, neither of us accepted any proceeds from the sale of the book.

[09:45:01]

So, here's the short version based on trial testimony. On December 9, 1981 at about 4:00 a.m., 25-year-old Daniel Faulkner was executed while making what seemed like a routine traffic stop. Faulkner pulled over the brother of Abu-Jamal aka Wesley Cook who was driving his car the wrong way on a one way street. Abu-Jamal was then working as a taxi driver. He saw the police stop from across the street.

And four eyewitnesses testified at trial as to what happened next. Their testimony portrayed a horrific sequence. Abu-Jamal ran across the street, shot Officer Faulkner in the back and then finally between the eyes. Before that fatal shot, Officer Faulkner had himself discharged his gun hitting Abu-Jamal in the stomach with that bullet you could say that he confirmed the identity of his executioner.

When police arrived Abu-Jamal was still wearing his shoulder holster. The murder weapon registered to him was next to him on the ground at the murder scene. He purchased it at a local sporting goods store. Ballistics tests verify that the bullets found in Abu-Jamal's gun were the same caliber brand and type as the fatal bullet removed from Officer Faulkner's brain.

Both men were taken to a local E.R. Faulkner was pronounced dead. Abu- Jamal was heard by witnesses including a security guard to say, "I shot the mfer and I hope the mfer dies." So, the case had eye witnesses, a ballistic match and a confession. Danny Faulkner left behind a young widow, Maureen, who for four decades has stood up to a torrent of lies and misinformation about the case.

For reasons that have never made any sense Abu-Jamal has over the years become the darling of Hollywood activists, rock bands, documentarians and college students. Mumia is a former Black Panther, a charismatic character who snowed a lot of people over 40 years with rhetoric that is simply nonsense. And now he seeks to do so with the new generation led apparently by Colin Kaepernick.

Whenever I'm educating someone about the case, in addition to what I've just told you, I always like to underscore one fact. Abu-Jamal's brother William Cook, he saw it all. His words to police upon their arrival were, I ain't got nothing to do with it. And he has never testified on his brother's behalf. Let me say that again, the brother of the man convicted of killing the cop has himself never taken the stand to tell a different story. And he was there. In 1982, a multiracial jury heard the case they convicted Abu-Jamal then sentenced him to death. For a quarter century and endless cycle of Abu-Jamal appeals made a mockery of the judicial system. His defense team attracted a long list of celebrity supporters. A street was named for him in France. NPR gave him his own radio show. He wrote several books. This all after he was convicted of murdering a cop.

But at home in Philadelphia, Abu-Jamal was never able to cultivate broad community support. People at home know what happened and never bought into the Hollywood lure. In 2011, Abu-Jamal's death sentence was ultimately overturned on a technicality. He's currently serving life without parole. Abu-Jamal will die in jail a fate more civilized than that what he gave to Danny Faulkner.

So thank you, Mr. Kaepernick, for listening. I should note you were invited to be on this program. I was told that you aren't doing any interviews on the subject. You should know that Maureen Faulkner, Police Officer Danny Faulkner's widow, would love to talk to you about the case. Will you take that meeting?

Still to come more of your best and worst tweets and Facebook comments and we'll give you the final results of the survey question at Smerconish.com. "Will President Trump ever concede?"

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[09:53:43]

SMERCONISH: Time to see how you responded to the survey question this week at Smerconish.com. "Will President Trump ever concede?" Let's see the result. Ninety-five percent say no, of only -- I put in air quotes 27,000 who voted. Thank you for that.

If he doesn't faced with these facts I think it's because he would rather be perceived as a victim than a loser and I think the victimhood that he's crafting, get ready for this, sets up a better narrative for him in 2024. Mull that over with your turkey.

Catherine, what else do we have? From social media, Smerconish, not only will Trump not concede, but I can anticipate a rally being held during Biden's inauguration.

Can I say something about this? I objected to those Democratic members of Congress who did not attend the Trump inauguration. I remember it so well because I participated in CNN's coverage and we sat up above and we looked down on the whole scene. I thought it was atrocious. There are some events that should cause us all to rise above for the sake of the nation and inaugurations are one of them. The Democrats all should have been at Trump's inauguration, and guess what, Trump should be at Biden's.

[09:55:00]

One more, quickly if I've got time. We need to let the constitutional process play out. Seventy million plus -- all Americans deserve to know the truth. Hey, Kelly Ann, I'm totally up for that. I'll tell you what offended me this week. I was offended by the idea that that Pittsburgh law firm was subject to a Twitter mob that said, you shouldn't represent Donald Trump.

That was horrible. Of course he's got a right to bring whatever evidence that he has of malfeasance. What I'm telling you is that thus far, there isn't any.

Happy Thanksgiving, everybody.

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