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Smerconish

Pence Breaks with Trump; CEOs Versus Election Deniers; The Trans Athletic Question; Ex-Head Coach Sues NFL. Aired 9-10a ET

Aired February 05, 2022 - 09:00   ET

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

[09:00:10]

MICHAEL SMERCONISH, CNN ANCHOR: Trump gets name-checked by his former number two.

I'm Michael Smerconish in Philadelphia.

Former Vice President Mike Pence called out his old boss yesterday, but not in a way that Trump wanted. It was just one of several developments yesterday all tied to the events of January 6th. First, former Vice President Mike Pence said the words "President Trump is wrong."

(BEGIN VIDEO CLIP)

MIKE PENCE, FORMER VICE PRESIDENT OF THE UNITED STATES: And I heard this week that President Trump said I had the right to overturn the election. But President Trump is wrong.

(END VIDEO CLIP)

SMERCONISH: Here's what Trump had to say about that, quote, "the vice president's position is not an automatic conveyor if obvious signs of voter fraud or irregularities exist. That's why the Democrats and RINOs are working feverishly together to change the very law. Because they now say they don't want the vice president to have the right to ensure an honest vote, in other words, I was right, and everyone knows it."

Meanwhile, the Justice Department released brand-new video on Friday evening in connection with the January 6th investigation. I have to warn you, these contain violent imagery. The videos include the mob infiltrating the office of House Speaker Nancy Pelosi. Pepper spray being used against police guarding the Capitol. And verbal threats of violence against the vice president.

Watch the right side of your screen, you're going to see some vicious behavior against law enforcement. Two guys in particular. On the right side of the screen. Here comes one of them. There he is with the red hat. Watch his buddy show up in a tan -- in a tan shirt, a red hat and beard. Here he comes. There it is, right cross. Keep watching him. Keep watching. Upper cut coming. Upper cut, at law enforcement.

Disgraceful, right? Looks like a Billy club being used. All this on the same day that the Republican National Committee censured the two Republican members of the January 6th Committee, Liz Cheney and Adam Kinzinger for quote, "participating in a Democrat-led persecution of ordinary citizens engaged in legitimate political discourse."

Though they later tried walk back this rebranding that wording remained in the resolution. The original proposal had been to expel them from the party.

In response, Utah senator and 2012 GOP presidential nominee Mitt Romney who happens to be the uncle of the RNC chair, he tweeted this, "Shame falls on a party that would censure persons of conscience, who seek truth in the face of vitriol. Honor attaches to Liz Cheney and Adam Kinzinger for seeking truth even when doing so comes at great personal cost."

Senator Bill Cassidy of Louisiana similarly tweeted, "The RNC is censuring Liz Cheney and Adam Kinzinger because they are trying to find out what happened on January 6th - HUH?"

House Minority Leader Kevin McCarthy refused to answer question about the censure or the mounting pressure that he's under to endorse a primary challenger to Cheney. But Cheney responded by calling GOP leaders, quote, "willing hostages to a man who admits he tried to overturn a presidential election and suggests he would pardon Jan. 6 defendants, some of whom have been charged with seditious conspiracy."

Yet another development. Phone records reveal that on the morning of January 6th, the former president called Representative Jim Jordan and spoke to him for 10 minutes. This directly contradicts what Jordan told the Rules Committee which is that he only spoke with the president that day after the attack. That afternoon, Jordan took to the House floor to object to the certification of President Joe Biden's Electoral College win.

OK. So, what does it all mean? I'm not surprised that former Vice President Mike Pence believes any of the things that he said yesterday. I'm only surprised that he finally decided to say them. His remarks to the Federalist Society were a flat-out rebuke of former President Trump. He name-checked Trump. He said that Trump was wrong. That he had no right to overturn the election. And he even went so far as to call that idea un-American.

Something else, Pence's choice of venue was politically wise. This was not a speech that Pence could have delivered to the RNC gathering in Salt Lake City that censured Cheney and Kinzinger. He would have been panned there. Instead, he chose to break from Trump on constitutional grounds in front of the Federalist Society.

This is 40-year-old organization of conservative and libertarian lawyers who fashion themselves as originalists or textualists. In other words, they want the Constitution strictly interpreted which is why Pence tied his comments specifically to Article 2 Section 1 of the Constitution. They would get that reference.

If there would ever be a supportive audience of right-leaning lawyers for Mike Pence, well, this is it.

[09:05:02]

And by combining his criticism of Trump with a prediction that Kamala Harris in 2025 would preside over the transference of power back to Republicans, oh, he guaranteed himself an applause line. It was politically brilliant.

But whether Pence's break with his former boss changes the bigger picture of the GOP, that remains to be seen. Because up until now, it's been just a handful of establishment Republicans usually on their way out of Congress who suddenly find their voice. And as for how far Vice President Pence is willing to take his new resolve, let's see if he testifies before the January 6th commission. Several of his former aides including adviser Marc Short have already done so. So, too, his former lawyer and the three-star general who served as Pence's National Security adviser.

I want to know what you think. Go to my website at smerconish.com this hour and vote on this week's survey question. Will Mike Pence testify before the January 6th Committee? Yes or no?

Is Trump right when he identifies his opponent's concern about the Electoral College law.

Joining me now is Matthew Seligman, he's a fellow at Yale Law School Center for Private Law. He's taught at Harvard Law School on the topic of disputed elections and he just published a provocative paper that was covered at "The Washington Post" called "A Realistic Risk Assessment of the President Election of 2024."

OK, Matthew, can a vice president reject the Electoral College?

MATTHEW SELIGMAN, FELLOW, YALE LAW SCHOOL CENTER FOR PRIVATE LAW: Absolutely not. That was never the case. It wasn't the case in 2020. And it won't be the case in 2024. Vice President Pence was absolutely correct in rejecting that power. And Vice President Harris doesn't have it going forward.

SMERCONISH: Would you call that a textualist or originalist interpretation, something that the Federalist Society would agree with?

SELIGMAN: Yes. From the very founding of our country, the vice president didn't have this power. And that's very clear if you look at the way that presidential elections operated from the very beginning. The founders were aware of the potential conflict of interest between the vice president and a presidential election.

And so, when they ratified the 12th Amendment, which now governs our Electoral College, they knew that the vice president couldn't have that power and their practice at the time confirms that they never meant to give the vice president that power.

SMERCONISH: OK. Well, to President Trump's point, then why is there change needed in the Electoral College Act of 1887? He says, I'm right, because otherwise there wouldn't be this move afoot to modify the law? SELIGMAN: For two reasons. The first is that the Electoral Count Act of 1887 is extremely unclear. It's poorly worded. People, lawyers, members of Congress, have a really difficult time understanding it. And that's exactly why there was so much confusion about what the vice president's legal powers were, what Congress' legal powers were in January 2021. So, it should be changed for that reason.

But there's another, and potentially more important reason, which is that the way the law is structured right now, although it doesn't give the vice president powers, it gives both governors and Congress powers to intervene in the results of an election that are just too dangerous to let remain.

SMERCONISH: Have there been issues with the Electoral College Act of 1887 since 1887?

SELIGMAN: Yes. The most dramatic problem was, obviously in 2021. But there have been objections before. And it hasn't gotten to the point where it is now but it's come from both parties and I think that's important to remember.

In 2004, members of the Democratic Party objected to the re-election of President Bush and the results in Ohio raising concerns about voting machines and potential improprieties in a tabulation of votes. Those objections were frivolous. And they shouldn't have been brought.

Now, luckily, it never got to the point where there was any possibility of actually overturning the results in 2004. And importantly, it wasn't taken seriously enough to provoke violence on January 6th. That's obviously changed. And that's why the law has to change as well.

SMERCONISH: So, I referenced in your introduction that you have taught about disputed elections including at the Harvard Law School. And you recently published a risk assessment for 2024. I know you've war gamed out scenarios. What worries you most about 2024? What could happen? Paint the picture.

SELIGMAN: What worries me the most is actually not congressional interference on its own of the type that we saw on January 6th of last year. It's instead, the manipulation of the results by a governor. So, the Senate has demonstrated itself to remain reasonable. And we hear from Senator Romney's comments just yesterday that there are a large number of senators in the Republican Party who remain committed to the rule of law. But we can't be so certain about that, about the House of Representatives. And Representative McCarthy's silence on this matter speaks volumes.

[09:10:00]

And also, we see in gubernatorial candidates in swing states that those candidates are committed to the idea that they would not have certified the election results in 2020 and wouldn't do so in 2024.

So, the scenario that I'm most worried about is that a governor, say, a Governor Purdue in Georgia sends in a fake slate of electors. And then, the House of Representatives refuse to reject it. And under the law that's written right now, there's nothing that can be done to stop that.

SMERCONISH: So, a final thought for me. The number was 147 Republicans who went along with former President Trump on January 6th. They didn't want to accept the Electoral College outcome. If it's presented as, are you with Trump or against him, I could see those Republicans remaining lockstep. But if it's the abstract Electoral College Act of 1887, maybe if there were a vote now, they would almost feel like they could get away with fine-tuning the law. Do you understand the point that I'm making?

SELIGMAN: I do.

SMERCONISH: And if so, give a 20-second reaction.

SELIGMAN: I think it's smart. I think it's wise and I think it's also principled. Because in the abstract, the principle is just it is that courts and not politicians, either Republicans or Democrats should be making the decision about the results of an election. And that are principle is impossible to deny. So, when members of Congress are put to a vote about whether they endorse that principle in the abstract, I think it's impossible for them to vote the other way.

SMERCONISH: Matthew Seligman, thank you so much for the expertise.

SELIGMAN: Thanks for having me.

SMERCONISH: Remember, I want to know what you think. Go to my website at smerconish.com. Answer this week's survey question. Will Mike Pence testify before the January 6th Committee? Won't that be interesting. Yes or no?

Up ahead. Is it smart when business CEOs decide to withhold campaign contributions from lawmakers who voted to object to the certification of the 2020 election, is that good business? We'll have an update on the 130 CEOs who made that pledge last year.

Plus, a collegiate trans-swimmer has been breaking school and national records and now, 16 of her teammates say she has an unfair advantage. I'll ask Olympic silver medalist Sharron Davies, what the solution might be.

(COMMERCIAL BREAK)

[09:16:20]

SMERCONISH: After the attempt to overturn the 2020 election, 130 American CEOs took a bold and unprecedented stand in January of 2021. Pledging to freeze donations to lawmakers who voted to reject the results. Remember, there were 147 in all. Eight senators, 139 House members, all Republican.

It might surprise you to know the CEOs initial motivation arose at a meeting on January 5th, the day before the attack on the capital on the actual vote. It was spurred by the release of the tape of Trump's January 2nd call with Georgia Secretary of State Brad Raffensperger seeking more votes and because so many Republicans had said they would be voting against certifying the results.

The weekend after the events of January 6th, the company started announcing they were suspending contributions and objectors' corporate funds from these sources have plummeted 60 to 97 percent.

Here's some specific examples. Ted Cruz down 95 percent. Kevin McCarthy, 60 percent. Steve Scalise down 70 percent. Mo Brooks, 97 percent.

While these objectors are primarily reliant on individual donors, this has got to hurt. Of the 130 companies that pledged to stop contributing to lawmakers who challenged the Electoral College vote on January 6th between 80 and 95 percent held the line for the first three quarters of 2021.

But new data reveals that the line began to wobble in the fourth quarter. Compliance is now at 60 percent even though we're not even at the midterms yet. Still, while this means 52 corporations have ended their moratorium, more notably perhaps, 78 are still on board.

Among those still withholding donations. Pepsi, PNC, Target, Lowe's, McDonald's, Coca-Cola, BlackRock, Bank of America, Amazon, Alcoa, 3M, Disney, eBay.

Among those no longer complying, Abbott Labs, Aflac, Altria, Boeing, Booz Allen, Comcast, Duke Energy. Eli Lilly, Ford, Wells Fargo, PG&E, Pfizer, Northrop Grumman, Goldman Sachs, GM.

Some companies chose to stop contributions to either party, joining a list of several hundred who have been abstaining such as IBM, Levi Strauss and CNN's future owners Discovery.

The pledge came about through emergency CEO conferences moderated by my next guest.

Jeffrey Sonnenfeld is professor and senior associate dean at the Yale School of Management. He's been running CEO meetings for decades.

Professor Sonnenfeld, nice to have you back.

If I'm a stockholder in any of those, meaning those that complied or broke the moratorium, isn't my position, hey, worry more about earnings and dividend instead of getting involved in these political skirmishes.

JEFFREY SONNENFELD, PROFESSOR AND SENIOR ASSOCIATE DEAN, YALE SCHOOL OF MANAGEMENT: Michael, thank you for that lead-in, your introduction knocked the ball right out of the park. You've covered all the key issues about what the statistics just released Friday, show us. So, congratulations on this fast analysis.

And that's exactly right. It's nothing could be more important in the strategic context of a business leader than to make sure that we have trust in our system. To have free enterprise working, you have to have belief that our foundations of democracy work.

Alexis de Tocqueville, a political scientist from France who visited in 1840, in his great book "Democracy in America" referred to this as social capital which is the public trust. He says it's more valuable than financial capital.

And yes, we don't want angry shareholders and hostile communities and finger pointing employees. Harmony is what CEOs need to drive their businesses and trust. And that's what this is all about.

[09:20:00]

SMERCONISH: Right. But to be cynical, aren't these contributions necessary sometimes to make sure that the business interests are covered by these politicians? And if I'm worried about my 401(k), aren't I saying, hey, stay out of this mess. Be out of that fray and do what's right for the business.

SONNENFELD: It's never hurt IBM in the history of the company. And actually, Tom Watson, Jr. never hurt them whatsoever. It never hurt Levi Strauss. And it's not hurting Discovery. So, no, I can't see it.

And also, to -- to stand aside as they are right now. Those great companies you mentioned from AT&T, to Verizon, Pepsi, Home Depot, Marriot's, it's surely not hurting them just to not be a part of this nonsense.

SMERCONISH: I know that your glass is half full, right? As the organizer of the conference from which this sprung you say, wow, 60 percent are still toeing the line of this so-called moratorium. But are you disappointed that 40 percent have broken ranks?

SONNENFELD: Well, you know, I didn't think it was a good image. In terms of money, it's inconsequential. Their - the amount of money of those who let their mandates expire and it was just a temporary mandate to let it expire is about $7 million. That's not even 1 percent of the total campaign contributions to congressional candidates. The money is inconsequential. But symbolically, it's not good.

So, I talked to a lot of them and several of them, they certainly had money in transfer at the time they made the pledge. So, that took care about 15 percent of them. And others talked to their congressman, who reversed their positions like we saw president - Pence speak out as you discussed in your first plot.

As we saw a number of them now admit that they regret their vote and that this was a fair and free and honest election. So, they've made some concessions the other way.

And in one case, they had a local manager who made a contribution that was against company policy. And they were sure it didn't happen, but it did. So, there are sometimes, there are some execution issues. But it's - it's -- you know, you look at the fact that - that this money doesn't matter and the fact that it is crushing the objectors, that the objectors are down 60 percent across the board in terms of corporation donations.

And -- but, yes, it's 87 percent individual contributions. I would like to know where the clergy are, where are the trade unions? Where are all the other -- why are we just pushing -- looking at business leaders. The social changes in the 1960s came from professional associations, and unions, and clergy locked in arms, and pension funds. Where are they all now?

SMERCONISH: In other words, your point is premised on what de Tocqueville said, we're nowhere if we don't have the stability of society from which people can do business.

One final question, by the logic that you've shared, I would think that Kinzinger and Cheney would be the beneficiaries of great corporate PAC donations. Are they, in fact? Is that the case?

SONNENFELD: Well, as you saw a lot of Republican stalwarts have been lining up behind those two, including former President Bush. So, we're seeing that a lot of CEOs do celebrate them, because they like the show. And most of the viewership, I believe, in this show take a centrist position. That's where the CEOs are. They're not captured by either party and they appreciate the independent patriotism of Adam Kinzinger and Liz Cheney.

SMERCONISH: Professor Sonnenfeld, thanks. We'll keep our eye on it.

SONNENFELD: Thank you.

SMERCONISH: Checking in on your social media from the world of Twitter, I think. What do we have?

"A CEO, private person can and should do what they want with their money. Businesses shouldn't be allowed to contribute to politicians at all."

Well, unfortunately, the law of the land says otherwise.

"Citizens United really sold the country to the highest bidder."

JT, you make a good point in terms of the ruling. I think I agree with you. I wish Citizens United didn't exist.

But my fundamental question of Professor Sonnenfeld still stands. And I get his response. His response is to say, who in simple terms, because he's much brighter than to say it this way. But who can do business if it's an unstable society, meaning politically unstable?

I was just trying to give voice to the viewpoint of someone who is you know worried about their retirement and saying, geez, why is that company in which I've invested via the stock market getting involved in a political skirmish where they're going to upset half the aisle. And maybe it will provide a business setback as a result.

Interesting debate, right? Remember, this is another debate or question I want you to answer. Go to my website at smerconish.com this hour. And tell me whether you think Mike Pence is in the end going to testify before the January 6th Committee. It's a yes or no. I'll give you the result at the end of the hour.

Still ahead. The recently fired coach of the Miami Dolphins is suing the NFL alleging that their rule requiring clubs to interview minority candidates is a charade. Well, we've got the great Stephen A. Smith here to weigh in on that.

Plus, trans-college swimmer Lia Thomas is setting several records and now several of her own teammates are claiming she's got an unfair advantage. Where's that headed?

(COMMERCIAL BREAK)

[09:24:25]

SMERCONISH: Is the policy that's supposed to ensure diversity hiring in the NFL actually just creating sham interviews from minority candidates who aren't really being considered for the job? That's the charge of a new lawsuit filed this week by Brian Flores, former head coach of the Miami Dolphins against the NFL and three of its teams.

Based on the text from his former boss, Bill Belichick, Flores believes that even though he was scheduled to interview for the New York Giants head coaching position, it had already been filled by a white man.

Flores claims that he was just part of a corporate charade. Since 2003, the NFL has had a rule called "The Rooney Rule," named for the late Pittsburgh Steelers' owner Dan Rooney who at that time was chair of the league's Workplace Diversity Committee.

[09:30:10]

It currently requires teams to interview a minimum of two external minority candidates for head coach, general manager and other front office jobs. Yet nearly two decades later in a league where roughly 70 percent of players are Black only one out of the current 28 head coaches in the NFL is Black. There are also coaches of Puerto Rican and Mexican descent and one of Lebanese descent.

The NFL and the team say that Flores' suit is without merit, but like Colin Kaepernick did on the player side he seems to be willing to put his future career at risk to bring these issues into the open. Flores told the "NEW DAY" program earlier this week the following --

(BEGIN VIDEO CLIP)

BRIAN FLORES, FORMER NFL HEAD COACH: I would say I felt similar pressures that, you know, Black people feel in all fields, not just football. That we have to do more, that we have to be better, that we have to -- we have to be exceptional just to stay on a level playing field. And it's, you know, in a lot of ways unfair but that's -- I know I'm not alone in that feeling. I know that. And, you know, I think we're going to get more stories, you know, similar to mine.

(END VIDEO CLIP) SMERCONISH: Joining me now is ESPN host and executive producer of "Stephen A's World" on ESPN Plus, Stephen A. Smith. Stephen, nice to have you back. Why aren't there more Black head coaches?

STEPHEN A. SMITH, ESPN HOST: Good to see you. Well, I mean, it's the proverbial glass ceiling as they say. But I guess you don't have to term it that way. I just think that when you look at the vast majority of NFL owners there's nothing else to deduce for what has transpired over the year than to ultimately come to the conclusion that they don't trust Black men to be leaders. That's really what it comes down in the National Football League.

When you look the fact that at least 70 percent of NFL players are of African American descent and you see that in the year 2022 there's only one Black head coach 19 years after the Rooney Rule was instituted in 2003 at which time where they had three Black head coaches. You've clearly taken a step in the wrong direction. There is no denying that.

Some people could, you know, contribute -- you know, attribute it to the notion that billionaires don't like to be told what to do. They're going to do what they want to do because they're their own bosses and you work for them. You look at the efforts of the National Football League where Roger Goodell and those guys and how they really put an eye on this issue. But in the end, they still answer to those owners.

The only conclusion you can come to is that they're going to do what they want to do, how they want to do it and what their -- where their comfort level resides is with someone other than Black men being leaders of other young Black men. That's what this comes down to.

SMERCONISH: Do you think it's deliberate? Do you think it's deliberate? Do they know what they're doing? Is it a conscious decision or is it an unintended consequence of some type of a cultural dynamic?

SMITH: Well, you could say it's both from the standpoint that obviously you can't dismiss the notion that a lot of them they feel the latter. But here's the bottom line, you had something to do with the Rooney Rule being instituted. You're a member of the league as an owner other than, you know, Shahid Khan who's a Pakistani American, owner of the Jacksonville Jaguars, and Kim Pegula of the Buffalo Bills. Those are the only minority owners. She's an Asian American. And those are the only minority owners in the National Football League.

So, when you look at other 30 owners knowing that the Rooney Rule was instituted in 2003 you had something to do with that. You signed off on it in terms of really encouraging teams to interview an African American candidate, mandating that. And you still find and manage ways to circumvent the rules or regulations that you yourself OK being implemented then obviously there's some intent that has to be attached to that.

We can sit up there and say, hey, you know what? They just want to hire the best candidate for the job. But then look at some of the things that have transpired. Just this week, for example, Jerry Jones, who a lot of people, including myself are incredibly fond of -- the Dallas Cowboys are one of the organizations that never hired a Black head coach. Well, what does he talk about? He alludes to, you know, Dan Quinn, a former head coach for the Atlanta Falcons, being that guy in waiting. This is years after Jason Garrett was a head coach in waiting when Wade Phillips was his head coach.

That's just one of many examples, where you've seen somebody on a staff, somebody that had the support of ownership even before they got the job. Well, if they're the preferred candidate and you make that known, well, what kind of option does that leave for African Americans who have been starving for opportunity to get these kinds of jobs?

SMERCONISH: Stephen -- quick final point. Those Belichick texts, at first blush, you think, wow, this really strengthening Flores' hand. But what does it really show? Maybe the fix was in, but not necessarily because of race. Quick response from you.

[09:35:00]

SMITH: Yes, you could say that, but I will tell you that, you know, Bill Belichick is plugged in. He's actually innocent in all of this because just like he was congratulating mistakenly, he was congratulating Brian Flores when he meant to be congratulating Brian Daboll, the former offensive coordinator of the Buffalo Bills who just got the New York Giants job. He's plugged in so he was aware of some of the things that he was hearing.

So, you could point to that, but I just don't think when it comes to Bill Belichick that's applicable. But in the end, though, the bottom line is Brian Flores was scheduled for an interview three days later. The New York Giants had scheduled that interview, but they knew they already had their man. And that's the issue that Brian Flores was bringing up --

(CROSSTALK)

SMERCONISH: Right. You know they -- you know they -- you know they vehemently -- you know they vehemently disagree with that. But I hear your point. Stephen A., thank you for coming back. I appreciate it.

SMITH: No problem, take care.

SMERCONISH: Checking in on your tweets and Facebook comments. Adam, what do we have?

Michael, it's obvious the Rooney Rule is a scam to appease our desire for inclusion. African Americans make up 70 percent of the players. There's one active Black coach in the NFL.

By the way, the A.P. reporting since the Rooney Rule came into effect, 21 percent of head coaching positions have been filled by people of color, 21 percent. I point that out because today there's only one. And people might think that there's -- there's always been that limited number. Look, in corporate America -- I talked about this on radio. And I took phone calls on SiriusXM from people this week and I said, call me if either -- if either, A, you've been, you know -- quote-unquote -- "victim" of a sham interview or if you've had to conduct one.

Phone lines all full. And people saying to me this goes on all the time. It doesn't make it right but there's like an internal candidate someone that the business likes. And everybody knows like it's going to be this person. But because there's a requirement they then have to go out and conduct interviews knowing that they won't bear fruit. Like whom is that fair to?

One more if I'm got time. Real quick.

Brian Flores better has some proof to back up these accusations. If not, this isn't just burning some bridges, this is scorched earth.

Well, Flex, the real interesting aspect of this case, there are several interesting aspects, but it's the claim that he makes against the owner of the Dolphins, Ross, saying that he was offered 100-grand to, you know, throw those games and -- quote-unquote -- "trust the process" if you get my reference.

Still to come, a transgender swimmer's record setting win is creating controversy. Now her teammates are speaking out. I will speak to a former Olympic swimmer who thinks without rule changes transgender athletes might be able to game the system.

(COMMERCIAL BREAK)

[09:41:43]

SMERCONISH: What should be the rules concerning competitive transgender athletes? This week, 16 University of Pennsylvania swim team members sent a letter to school and Ivy League officials expressing concern about their own trans teammate's unfair advantage. This coincides with South Dakota Governor Kristi Noem this week signing a new anti-trans law called Fairness in Women's Sports that holds, "Only students, based on their biological sex, may participate in any team, sport or athletic event designated as being females, women, or girls."

Well, gang, here's the deal, my prompter just froze. So, let me tell you this. There's controversy at the University of Pennsylvania as to what to do with a trans swimmer named Lia Thomas. And I have the perfect person with whom to discuss this situation. It is Sharron Davies, herself an Olympian, who knows a little bit about the subject matter and knows a little bit about when prompters fail.

Sharron, thank you so much for being here. Here is the -- here is the question that I want to ask you, can we be both fair and inclusive with regard to Lia Thomas?

SHARRON DAVIES, 1980 OLYMPIC SILVER MEDALIST: So, let me say, it's not an easy situation. And hello from England, Michael. I'm very well done on the prompter going down because it's not an easy job. That's obviously how professional you are.

It isn't an easy circle to square. But, however, we have to look at the science and we have to look at why we have a male and female category. And the reason we have this is that because, otherwise, women would not win anything at the Olympic Games. They wouldn't win anything on to football field or the hockey field or the ice hockey field. So this is why we actually have it in the first place.

Male and female bodies are very different. And obviously sport is done by our bodies. So, I just want fair sport.

However, I do want everyone to be able to do sports. So, I suppose my solution would be an open category where transgender men and transgender women would be welcome to compete and then a female protected classification. Because sport is for absolutely everybody. Absolutely should be.

But first and foremost, it has to be fair. And that's the reason why we have categories. You know, we have categories of weight in boxing. We have categories of disability in the Paralympics. We have age categories. We have all of these things to create fair sport.

SMERCONISH: But are there enough trans athletes? If you're creating a category for trans athletes to compete against themselves -- I don't know the answer to this question. But based on the amount of attention they get it tells me there probably aren't enough for there to be competitive contests.

DAVIES: No, I'm not suggesting that. I'm suggesting an open classification. So we would replace the male classification with an open classification and we have a protected female classification. So it's still competitive. It's still inclusive and it's still a very welcoming of everybody.

SMERCONISH: One of the -- one of the things that was contained in the letter by the 16 teammates said, look, Lia Thomas competing as a man was ranked somewhere in the 400 range. I forgot the exact number.

DAVIES: Four hundred and sixty-two.

SMERCONISH: Now, as a female -- yes. Now as a female has gone to number one. And something that I don't see is I don't see this going in reverse. In other words, I don't see trans male athletes presenting the same type of dynamics which I think underscores your point.

DAVIES: Absolutely.

[09:45:00]

You know, trans men are biological females who are on testosterone so they're not allowed to compete in the women's category because they would brand -- professionally it's illegal. That's why we have doping system. So really nobody has been looking after them at all. You know, there's no talk about them because they don't threaten men's sport. And obviously there's a difference between 10 and 30 percent on performance at Olympic level. Now often people talked about the Michael Phelps' gambit. He's tall. He's got great wing span. Well, to be honest with you, yes, he has, but so has everybody else in that men's Olympic final.

Michael is only 0.5 percent faster than the next fastest man. He's 12.5 percent faster than the next woman. And that's a vast amount. That's half the length of the pool.

So if we want serious competitive sport then we have to talk about biology and we have to use science. You know, that's the only way we can do it.

Swimming USA just brought some new rules in which a step in the right direction. However, it's very subjective to have a panel. And I'm not sure that that's really the way to go.

How do we eliminate, you know, male puberty? That's denser bones. That's bigger lung capacity. It's a better ability to transfer oxygen around the body. So there's so many benefits that comes from male biology. I just don't know how you mitigate that.

SMERCONISH: Sharron, I was going to say the new policy you were touching on this says, transgender female swimmers will be required to provide -- quote-unquote -- "evidence" that a competitive advantage over cisgender athletes does not exist. How practical is it to be able to implement that type of a standard?

DAVIES: Well, how do you do that? You know, exactly. And you touched on it right there. You know, Lia when she was competing as she did for three years in the male competition her -- she was 462nd, I think. And now she's number one in the female. So the only way you would say that there was no mitigation was if she was 462nd in the women's event and obviously she's not.

SMERCONISH: OK. So now I go back to my original question which is, can we be both inclusive and fair? And what I'm taking from you is not based on the current dynamics, not unless we create some alternative form of competition.

DAVIES: Yes. I mean, the only way we -- we can't fair if we allow male biology into female races. So I think how we have to be is inclusive and welcoming by changing our categories. Therefore, having an open category which really doesn't allow everybody to be involved in sport and a protected female category.

So people that are born female, that are female -- because we can't change our biological sex, have the same opportunities as their male counterpart. You know, women's sport has always had a tough rap. You know, we don't get the same price money. We don't get the same TV exposure. It's been getting an awful lot better over the last few years and this would be a massive step in the wrong direction if we want to encourage young girls and women to do sport.

SMERCONISH: Sharron Davies, thank you for being here. I'm only sorry I didn't get to offer you the full benefit of the wonderful introduction that we had written

on your behalf.

DAVIES: You did a great job though. And it's lovely to speak to you all.

SMERCONISH: Cheers. Let's check in on your tweets and Facebook comments. What has come in on this controversial subject?

Although I can run circles around my 6'3" husband, it's time for a transgender lane of its own -- SDM.

Look, my heart breaks for Lia Thomas. I want Lia Thomas to have all the benefit that Lia Thomas has earned of collegiate competition. But I'm also mindful of the fact that now the story has turned that even 16 of her own teammates are uncomfortable with the situation and regard her as having an unfair advantage. And I know what the problem is but I've just not seen a workable solution thus far.

One more if we have time for it and maybe we don't. Yes, no? All right, we're moving on.

Still to come, more of your best and worst tweets and Facebook comments. And we'll give you the final result. Have you voted yet? Please go to Smerconish.com. I talked about this at the outset of the program.

Will Mike Pence testify before the January 6th committee? Answer yes or no. I'll give you the result in a moment.

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[09:53:16]

SMERCONISH: Time to see how you responded to the survey question at Smerconish.com this week asking, will, not should, will Mike Pence testify before the January 6 committee, yes or no? Here comes the result. A lot of voting, 16,793. Let's call it 60/40. Fifty-seven percent say no. I guess, 57 percent say, well, it's one thing to go speak to the federalist society in Florida but it's quite another to show up at the January 6 committee. Soon we'll know the answer to that question.

Here is some the social media reaction that came in during the course of the program. What do we have?

Does Pence get censured for speaking the truth now?

Well, Barb, he could never have made those remarks in Salt Lake City, right? I mean, in the end he was warmly received. There was applause. I did note that the critical part of the speech he sort of combined with a comment about Kamala Harris in 2025 guaranteed -- very cleverly written -- guaranteed that at the end of the thought, there would be applause. But he would have been heckled if he were in Salt Lake City, right?

And remember something else. This is all a race against the clock with regard to the January 6th committee or commission because if Republicans as expected re-take control of the House of Representatives, you can well imagine that comes to a grinding halt in short order.

Another one, if we've got time for it and I think that we do.

Pence's coming out yesterday tells me, yes, he'll testify.

Look, Marc Short has already been in front of the January 6th committee. The people around him and Short was with him that day, I think, in the capacity of chief of staff. There's no doubt in my mind that Pence wants the story told, right? Given what he was through -- I mean, some of the footage that was released last night by the justice department that we have never seen before is even more harrowing than what we have seen previously relative to some of the threats against Mike Pence.

[09:55:08]

As I said at the outset of the program, nothing that he said surprises me that he believes it. The only thing that surprised me is that he was finally willing to say it. One more from social media.

Replying to Smerconish. Not a chance. If he does, he is done in the Trump Republican Party. He should, meaning he should go before the January 6th commission, but he won't.

Doug, I think he's already -- he probably doesn't know this, but I think he's already finished with the Trump component and they still control the GOP. Remember, there's some staggering data out there that says most Republicans won't vote for someone who thinks that Joe Biden won the election fair and square. So, it's not Mike Pence's party at this point. It's Donald Trump's party.

Thanks for watching. I'll see you next week.

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