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Smerconish

Biden Meets Polish President as War Rages in Ukraine; Will More Nations Seek Nuclear Weapons?; What Are Russians Being Told About The War?; Should Supreme Court Justice Clarence Thomas Recuse Himself?; U.S. and Russia Lack of Communication could Lead to Escalation. Aired 9-10a ET

Aired March 26, 2022 - 09:00   ET

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

[09:00:00]

KAITLAN COLLINS, CNN CHIEF WHITE HOUSE CORRESPONDENT: And President Biden himself talking about the history of when Poland joined NATO in 1999. Obviously, that was what brought that Article 5 commitment into play there.

WOLF BLITZER, CNN ANCHOR: So important indeed. We're going to have so much more on President Biden's historic visit here in Poland throughout this day on CNN, including what the White House is calling a major speech on the humanitarian refugee crisis.

Our coverage will continue. But right now, "SMERCONISH" is coming up.

MICHAEL SMERCONISH, CNN ANCHOR: With the conflict raging in Ukraine now in its second month, the president on a high-stakes trip in Europe.

I'm Michael Smerconish in San Francisco.

After meeting with Ukrainian officials this morning, President Biden held a crucial bilateral sit down with the Polish President Duda to discuss the allied response to the situation in Ukraine and the refugee crisis as more than 2 million Ukrainians have fled to Poland. He's scheduled to visit with refugees during this hour. We'll bring you that live when it occurs.

For the very latest, we go back to CNN chief White House correspondent Kaitlan Collins in Warsaw. Kaitlan, this part of the trip seems to be focused on humanitarian relief. What's about to unfold?

COLLINS: Absolutely. That has really been the focus of the latter half of President Biden's time here in Europe. Meeting with President Duda. As you just noted there, Poland is really shouldering a lot of the refugee crisis that has been sparked by this Russian invasion of Ukraine.

President Biden said he doesn't think that should only be Poland's responsibility. That the whole world should share in that.

And you saw some of the steps the United States is taking to help them with the refugee crisis. The leaders here have said that they are struggling to cope with it just because it has been set a massive influx of refugees. Over 2 million people have come into Poland since this invasion of Ukraine started.

Obviously, millions more displaced from their homes and the U.S. announcing they'll accept up to 100,000 of those Ukrainian refugees in the United States though. Of course, it remains to be seen if 100,000 of them would like to come to the United States.

The White House has said they believe, maybe they would prefer to stay here in Europe. But it still is a huge aspect of this. And it does highlight the human toll that this invasion has caused.

Michael, I thought one other thing that stood out from President Biden as he and the Polish president were speaking there was talking about maintaining this clear line of communication between the two of them. Obviously, it was just a few weeks ago when the White House was caught off guard after the Polish foreign ministry said they were willing to give the United States their used fighter jets in order to transfer those then unto Ukraine. That was an idea that the Defense Secretary Austin, who was sitting there next to President Biden, had said they believed it was not feasible for the United States to facilitate that transfer.

So obviously, these are all things that they are talking about behind the scenes. Though we should note this comes after they met with top Ukrainian officials earlier today. And President Biden, of course, after this is going for the first time on this trip and the first time since this invasion started to meet face-to-face with some of these very Ukrainian refugees that they are talking about, what this has looked like for them since in the last month since this invasion began. Michael.

SMERCONISH: There had been speculation that President Biden would attempt to see President Zelenskyy before heading home. It seems like that's not going to take place. Do you know how seriously the White House considered that?

COLLINS: I think it was something they didn't rule out initially when they were very abruptly putting this trip together. Normally, a trip like this would take several months in advance to plan. This is something that the White House and the rest of the world put together within just days. Whether or not he was going to actually meet with Zelenskyy, it seems very difficult because the White House acknowledged. Obviously, it was very difficult for Zelenskyy to come here to meet President Biden given he has not left Ukraine since just a few days before the invasion. When only for a few hours he left and went to the Munich Security Conference.

And also, the idea of sending President Biden into Ukraine, they believe it was difficult because it's an active warzone. And yes, presidents have gone into the active warzones before but there are no members of the United States military there. And so, I think those were all the factors the White House had considered here though.

You did hear President Biden say yesterday, he wanted to try to go into Ukraine. He wanted to see this first-hand and up close, but he said -- indicated that for security reasons that is why he did not go into Ukraine during this trip.

SMERCONISH: Kaitlan, thanks so much for the report. We appreciate it.

As Russia's invasion of Ukraine drags on, there are mounting worries about the lack of communication between the United States and Russia and it's causing a greater risk of escalation. Earlier today, President Biden attended a meeting between his Secretary of State Tony Blinken and Defense Secretary Lloyd Austin and their Ukrainian counterparts. But CNN has reported that the last time the defense secretary - Defense Secretary Austin is known to have spoken to his Russian counterpart. It was February 18th. And Joint Chiefs Chair Mark Milley hasn't spoken to his counterpart since February 11th and they've been trying.

Here's what Pentagon Press Secretary John Kirby told Wolf Blitzer on Thursday.

[09:05:00]

(BEGIN VIDEO CLIP)

JOHN KIRBY, PENTAGON PRESS SECRETARY: We have not had a successful attempt to talk to Defense Minister Shoigu, Secretary Austin's counterpart, or General Gerasimov for who is the chairman of the Joint Chiefs, General Mark Milley's counterpart. Now we've tried on several occasions in the last week or 10 days, and we just haven't been able to reach out to either one of them.

(END VIDEO CLIP)

As "The Washington Post" recently put it, this radio silence between the countries leaves "the world's two largest nuclear powers in the dark about explanations for military movements and raising fears of a major miscalculation or battlefield accident."

Joining me now to discuss is retired Navy Admiral James Stavridis who spent four years as a Supreme Allied Commander at NATO. He's the co- author of the recent all too relevant work of fiction "2034: A Novel of the Next World War."

Admiral, how is this deconfliction channel supposed to operate?

ADM. JAMES STAVRIDIS (RET.), FORMER NATO SUPREME ALLIED COMMANDER: It's supposed to be very simple. You ought to be able, as a leader, to reach out and almost literally pick up a phone and be talking to your counterpart. And it's not quite that seamless but as Supreme Allied Commander of NATO for four years, when I wanted to talk to the supreme commander of the Russian armed forces, General Nikolai Makarov, I would say to my communications officer, hey, we're really out of touch, based with the general about this aspect of counterpiracy operations or submarine forces in the Arctic, or whatever we wanted to deconflict, Michael.

And I could be on a phone call with him literally within the hour. And I think that's been the norm between U.S. authority, chairman, secretary of defense, over the years, even during the Cold War. So, it's very concerning and just to close on this point, people think, perhaps, well, you know, we're not going to get in a war with Russia. It won't escalate.

You know, how did World War I start? It started with an assassin's bullet in a dusty corner of the Ottoman, of the Austria-Hungarian empire in 1914. Lack of communications, armies mobilizing, lost control of that ladder, a vertical escalation by 1918. 20 million dead in Europe. It can happen. We need direct communication.

SMERCONISH: Admiral, if Vladimir Putin wanted them to pick up the phone, presumably, they would, right? This comes from him.

STAVRIDIS: You have to assume that Putin has said shut down communications, because Putin wants to create more angst, more worry, more fear, less certainty about what he's going to do next. It's part of this style in crisis. But it's a very dangerous maneuver at this particular moment.

SMERCONISH: What do you make of reports of a so-called recalibration where Russia is now focused on those Russian-speaking portions of eastern Ukraine, and kind of backing off what they were saying relative to Kyiv? That this is -- is this a recognition on their part? Some type of failure?

STAVRIDIS: Yes, I'd put this in the category of reality sucks occasionally. And the Russians are encountering that. You know, Plan A, as we all know was blitzkrieg go driving across Ukraine, decapitate Zelenskyy, puppet regime, all that to happen within three to five days.

Well, Plan A failed. And has failed almost in a spectacular fashion, when you compare what they wanted to achieve and where they are. Bogged down across the country.

So, now, we're on Plan B, which is terrorize the population, consolidate as much as you can in a negotiating position. And, Michael, I think part of that is going to be I controlled the southeast of the country, the Donbas region that you mentioned, these play republics that he's created, Luhansk and Donetsk, Crimea, you can sort of see the outline of where he's trying to go. He's attempting to consolidate.

SMERCONISH: Worries over chemical weapons have been a part of the president's overseas trip. You wrote for "Bloomberg" on that subject this week. I'm going to put up on the screen, Admiral, part of what you had to say.

"A chemical or biological attack would terrorize the population - a key objective in Putin's Plan B strategy now that Plan A, a blitzkrieg decapitation of Ukraine's government, has failed. It would also help him conserve his inventory of cruise missiles and bombs, which is shrinking rapidly. Few things would empty a city faster than a cloud of nerve gas."

Here, Admiral, is what the president said yesterday on this subject. Watch. (BEGIN VIDEO CLIP)

QUESTION: If chemical weapons were used in Ukraine, would that trigger a military response from NATO?

JOE BIDEN, PRESIDENT OF THE UNITED STATES: It would trigger response in kind, whether or not you're asking whether NATO would cross. We'd make that decision at that time.

(END VIDEO CLIP)

[09:10:00]

SMERCONISH: You are the former Supreme Allied Commander and if it is a non-NATO nation, that is hit with chemical weapons, wherein lies the authority that there could be a NATO response.

STAVRIDIS: Well, for starters, it's very difficult to control weapons like chemical or biologic. So you could make a case, Michael, that you are - you rush are now threatening NATO nations because in the lack of ability to control it. Same with a tactical nuclear weapon, by the way.

But I don't think at this point, what the president is referring to is, that is a step using a weapon of mass destruction, that is a step that would require NATO to at a minimum, consult and make decisions about responses. And I think the president is smart not to lay out exactly what we're going to do, where we're going to do it. Because, Michael, that response could be military. It could be more sanctions. It could be in cyber. It could be maritime at sea. There are a lot of options that the West could take, if Putin were foolish enough to use a weapon of mass destruction. Whether or against a NATO nation, or against a democracy like Ukraine. I think the president's right, it would require a response. He's not going to show his hand of cards quite yet, but I assure you options are being prepared.

SMERCONISH: Final quick question. Is he being tough enough? I ask about President Biden because a recent AP survey, put that on the screen, Catherine, if you would. 56 percent responding to the AP and NORC say President Biden not tough enough. 36 percent like the porridge, it's about right. And 6 percent, say too tough.

What does Admiral Stavridis think?

STAVRIDIS: Let's get out of the sea of porridge and get into a real nautical metaphor. What the president is trying to do is steer a very narrow passage in a very tight sea. On one side is the threat of escalation -- significant escalation between two nuclear powers. On the other is, what we all want to achieve which is support to the Ukrainians in this brave fight. I think he's got the ship in the middle of the channel about right.

SMERCONISH: Admiral, thank you so much. We always appreciate your expertise.

STAVRIDIS: Thanks, Michael. SMERCONISH: What are your thoughts? Tweet me @smerconish. Go to my Facebook page. Hit me up on social media. We'll work in some responses throughout during the course of the program.

From what we are seeing on the ground daily, Michael, I would argue that the question of escalation has already been answered.

Glenn, I find it interesting and you heard the Admiral's response to the notion that there's this potential recalibration taking place. We hope that Putin recognizes the folly of his ways, right? And this concentrating his efforts now on those Russian-speaking areas of Eastern Ukraine, and maybe not so much on Kyiv as they have in the past.

Another one, Catherine, if we've got time.

I know there is a risk, but the president would have done well to have gone to Ukraine.

Robert Tripp, I thought, I'm sure if humanly possible, he would have made that excursion. I thought when Vice President Kamala Harris went to Poland a few weeks ago, that perhaps she would have tried to do so. And then, you know, that three foreign leaders got on the train and they went, and they met with Zelenskyy. I'm sure President Biden wanted to do it. I thought that would have been the feather in the cap of this trip.

Hey, I want to know what you think. Go to the website at smerconish.com and answer this week's survey question. I just brought it up with Admiral Stavridis.

Should NATO respond - NATO -- if Russia uses chemical weapons in Ukraine?

You just heard what the president had to say on that subject during the course of this trip. I'll bring you the result later this hour.

Up ahead. After meeting with Polish President Duda, President Biden now heading to the national stadium to meet with some of the 2 million Ukrainian refugees who have fled to Poland. We'll bring you the very latest.

Plus, whatever the outcome in Ukraine, will the ultimate lesson be how Russia leveraged its threat of nukes and made every country want nukes of their own.

And now that Vladimir Putin has eliminated the last vestiges of independent media in Russia, what are the country's citizens being told about the conflict in Ukraine? And is there any way for them to hear the truth?

(COMMERCIAL BREAK)

[09:18:25]

SMERCONISH: If you have nukes, nobody messes with you, that appears to be Russian President Vladimir Putin is not so subtle message to the world after invading the nonnuclear weapons state of Ukraine. Just days after the start of the attack in late February, Putin issued an ominous threat to anybody hoping to intervene in the conflict when he put Russian nuclear forces on high alert.

The Biden administration featuring - fearing - pardon me -- an all-out war with Russia has since been adamantly opposed to implementing a no- fly zone over Ukraine. You might remember Ukraine gave up its entire nuclear arsenal at the end of the Cold War when it signed a nonproliferation treaty in 1994. That agreement signed by 191 countries aims to stop the spread of nuclear weapons and work toward complete nuclear disarmament.

In exchange for signing the treaty, security pledges were made to Ukraine by the U.S., Britain and Russia, nations that had nuclear weapons of their own before the treaty and were allowed to keep them.

Now that the Kremlins' past assurances to Ukraine are seemingly meaningless, will more nations seek to get a nuclear option to protect their own interests.

"The Washington Post" foreign affairs columnist David Ignatius had this chilling prophesy. He said, quote, "would Putin have invaded if Ukraine had kept its nuclear arsenal back in 1994, when the United States pressed it to disarm? I doubt it. The lesson won't be lost on Iran, Saudi Arabia, North Korea - go down the list. This war might prove the greatest stimulus to nuclear proliferation in history."

Joining me now to discuss is Mariana Budjeryn, a research associate with the project on managing the atom at Harvard's Kennedy School.

[09:20:03]

Doctor, thank you so much for being here. Did David Ignatius get it right?

MARIANA BUDJERYN, PROJECT ON MANAGING THE ATOM, HARVARD KENNEDY SCHOOL: The short answer is yes. Sorry. It is really bad news for international nuclear non-proliferation regime. And let's remember that this is something that the international community has built over decades and arrived at this consensus that the fewer nuclear weapons states in the world, the better for everybody -- everybody involved.

And right now, Russia, one of the recognized nuclear weapons states under this - this treaty, the NPT, that you have mentioned, Michael, is essentially gone rogue. And it's using its nuclear -- nuclear arsenal, not to deter nuclear war, but to enable an aggression against a nonnuclear weapons state. That had a -- as David Ignatius and you had mentioned, had given up nuclear weapons of its own back in 1994.

SMERCONISH: It's sort of turns the old mutually assured destruction notion on its head. If Russia didn't have nukes, I'm convinced NATO would already be in Ukraine. If Ukraine had nukes, I don't think Putin would have invaded Ukraine.

BUDJERYN: That's correct. One thing we have to keep in mind that what Ukraine inherited and what it actually gave up was not a ready-to-use nuclear deterrent, right? Ukraine would have still had to invest in certain facilities and, you know, make up some of the missing links of a nuclear weapons program in order to be able to have that deterrent from the Soviet Union.

So it gave up a nuclear option. But it's still very significant. Because this Budapest - so-called Budapest memorandum on security assurances to Ukraine, in connection with its accession to the NPT, to the non-proliferation regime that was signed between Ukraine and the United States in Great Britain. And Russia at the time in 1994, that was a negotiated settlement that was part of the deal for Ukraine. Ukraine's decision to give up its -- this nuclear inheritance. And it became part and parcel of the overall nuclear non-proliferation regime.

So, you know, the damage that it's done to Ukraine today has far wider reverberations. And as David Ignatius correctly pointed out, other countries are really watching. And I would add South Korea and Taiwan as well to that list.

SMERCONISH: Right. I was thinking if I'm South Korea or if I'm Taiwan, I think the lesson is, we need to be nuclear as a capability, otherwise, this, too, could happen to us.

BUDJERYN: Right. Because nobody wants an all-out nuclear war, right? And Putin has used - has nuclear threats very effectively. He communicated right off, it was the fourth day of the war that he pulled out the nuclear card, or even in his speech sort of inaugurating the invasion. He mentions it over and over again. And then he raises the readiness level of his strategic deterrent forces and it works. It works.

It works to keep NATO and the United States out. And what we are also realizing that having spent so much time thinking about how this deterrent works between two nuclear-armed states, we haven't spent nearly enough time to think how to deter a nuclear use by a nuclear state against a nonnuclear weapon state. There's nothing to deter Putin's use of say a tactical nuclear weapon or any other weapon on mass destruction against Ukraine today.

SMERCONISH: Dr. Budjeryn, a final question, only 30 seconds. So how then do we protect against the escalation that you and I both, suspect is coming?

BUDJERYN: There's no easy answer to this question. I think a lot is riding on the outcome of this war. If Ukraine prevails and somehow manages to push Russia out, and the West helps it to do so, then the narrative is maybe nuclear weapons are not essential, right? Maybe you can - you can defeat a nuclear weapons state without having nuclear weapons. If Ukraine falls, then -- then the nuclear weapons will gain a very different value in the world.

SMERCONISH: Dr. Budjeryn, thank you so much for your time and expertise.

BUDJERYN: Thank you for having me. SMERCONISH: More social media reaction from my Smerconish Twitter and Facebook pages and YouTube.

If Russia uses WMDs we have no choice but to intervene otherwise, the entire West will look weak. Which we are not. There's no choice if Putin chooses that path.

Joe Cilento, I raised that subject with Admiral Stavridis, and I asked him, what would be the justification, the basis for NATO to get involved with a non-NATO country, in this case, Ukraine.

[09:25:06]

If there had been, I said, chemical weapons, and that's our survey question today. And he said because they can't be contained, right? If chemical weapons are launched and target Ukraine, the spread is going to impact potentially a nation like Poland which is a member of NATO that was his explanation which made sense to me.

I want to remind you, go to the website smerconish.com this hour and answer the survey question.

Should NATO respond if Russia uses chemical weapons in Ukraine?

Up ahead. President Biden is in Poland, of course, meeting with refugees from Ukraine. We'll bring you a live update.

And if Russian state TV is your only source of news about the invasion of Ukraine, you would not have even heard it called a war. What is Putin communicating to his country, and is there any way around it?

(COMMERCIAL BREAK)

[09:30:19]

SMERCONISH: What exactly are the Russian people being told about the war in Ukraine? That's my question, as Vladimir Putin works to obliterate press freedom in his country. Since the invasion began the lights have gone out at countless independent Russian media outlets. Organizations like online investigative Web site Meduza, TV channel Dozhd and radio station Ekho of Moscow have all been blocked to the public.

The Russian parliament has gone a step further by passing a law that bans what it considers -- quote -- "fake news" about the Russian military or war in Ukraine. The Kremlin has even tried to stem the free flow of information online by expanding the crackdown to social media. Access has been restricted or blocked outright to sites like Facebook, Instagram and Twitter for tens of millions of Russians.

So, where are they getting their news now? According to my next guest, it's an evening news program on Russia's main state TV channel and has changed very little since Soviet times.

Here with me now to discuss from Odessa, Ukraine, is former journalist, analyst and diplomat Lawrence Sheets. He's currently president of Eurasian International Analytics. He wrote a piece for "Politico" after watching Russia's flagship news broadcast for clues into what's happening inside the Kremlin. So, Lawrence, where do they go, the Russian people to get their news?

LAWRENCE SHEETS, FORMER NPR MOSCOW BUREAU CHIEF: Well, most of them would get their information now from Channel One Russian television, state television. This particular program of which you speak is called Vremya. It means time in Russian.

It's been on since 1956. It comes on religiously at 9:00 p.m. each evening across the 11 time zones, depending on where you are in Russia. That is where most people will get their news. There are other television stations but they're all dominated by the Kremlin.

Outside of that, you would have to somehow go through VPN on the internet or satellite, satellite dishes, or satellite internet, things of this nature, or short-wave radio perhaps. A few people do that and the fact is they get their information from state TV.

SMERCONISH: So, if I'm dependent on it Vremya, why do I believe Russia is now in Ukraine? What have I been told?

SHEETS: Well, you've been told that you are on a noble mission to fight Nazis. And that you are -- that Russia is fighting Ukraine to rid Russia -- to rid Ukraine of Nazi leadership which, by the way, is led by a Jewish president, and at one time there was both the Jewish president and the Jewish prime minister at the same time, the only country outside of Israel with such.

They're being told they're fighting neo-Nazis. The narrative shifts all the time. That terminology has been toned down somewhat. Now, they're fighting nationalists. Then they're fighting Ukrainian -- they call them cannibals or head -- people who cut off heads, these sort of things.

The operative language has changed as well, which is much more important to understand. Ukraine is being referred to as nothing more than a beachhead for NATO, which in the words of Russian television, is intent on destroying Russian civilization and Russian culture and the Russian language. People in Russia are being told, for instance, that it's forbidden to speak Russian in Ukraine.

I'm in Odessa. This is a Russian-speaking city. Ninety percent of the conversations are in Russian. It is not forbidden.

I listen, for instance now, I have on Ukrainian radio. Quite often the questions from the anchors will give the questions in Russian. If the person is a native Russian speaker from the east of the country, they will answer in Russian. They're not mutually intelligible languages. They're further apart than Spanish and Italian, for instance. But --

SMERCONISH: Lawrence --

SHEETS: -- if you lived here all your life, then you can understand what's going on. And there's no -- there's no phobia about speaking Russian to a Ukrainian speaker. SMERCONISH: If my -- if my primary source -- if my sole source of information is Vremya how do I think this special operation is going from a Russian perspective?

SHEETS: Well, it's going fantastically according to the Kremlin, but you have to read between the lines. The first was denazification and now it's being called the special operation to ensure the security of these two eastern pseudo republics which are regions of Ukraine, Luhansk and Donetsk, and of Crimea. At the same time, again, I want to reiterate this is being cast in the light of the United States and NATO against Russia.

[09:35:00]

Last night was especially revealing, last two nights on Russian television, as Hunter Biden, for instance. Hunter Biden had served on the board of a Ukrainian gas company. And they said that Hunter Biden was not just -- in their words, I quote this, "snorting cocaine" when he was in Ukraine, but he was leading a special operation to establish chemical and biological weapons factories, complexes in Ukraine. And that the United States was equipping birds and infecting them with viruses ranging from plague to cholera and sending flocks of bats and birds into Russia or planning to. And that's from the words of the president and down to his advisers.

SMERCONISH: It sounds just as it was during the Cold War and of course the days of the Soviet Union. Lawrence Sheets, thank you so much. We appreciate your time and your report.

SHEETS: Thank you, sir.

SMERCONISH: Checking in on more social media reaction. From the world of Twitter.

You ask if the Russian citizens can know the truth about the war. I ask with our bias media can we as Americans know the truth?

Joe, I think -- I guess it was Springsteen back in -- I'm pretty sure it was Springsteen who back in the '90s said, 57 channels and nothing is on. You can fact-check me easily on that. Now, you've got 500 channels, you know, in this country and in the world outside of Russia. Imagine if there has been a shutdown of all the media, and you've got one source, and it's a 9:00 p.m. show and it's called Vremya and it's run on state TV. And that's the only place you can go. You just heard my guest tell you the B.S. that they're being fed.

Here is what you make of it. You know, in the western world and in the United States in particular, you know what I say, change the channel. Mix up your media diet. And don't be dependent on any one particular outlet. They don't have that luxury.

I want to remind you to answer the survey question this week at Smerconish.com. Should NATO respond if Russia uses chemical weapons in Ukraine?

Catherine, do we have time to run that clip of what the president quickly one more time? What the president said on this issue to setup the survey -- roll it if you can. We don't have it -- OK.

This was President Biden addressing to -- addressing that subject. I'll play it for you when we come back. By the way, the president is heading to the National Stadium in Warsaw to visit with some of the 2 million refugees from the Ukrainian conflict who have come to Poland. We will bring you that as it happens.

And domestic politics, newly released text to White House Chief of Staff Mark Meadows from the wife of Supreme Court Justice Clarence Thomas reveal she was lobbying to overturn the election. In one she mentions a reassuring conversation with -- quote -- "my best friend." Could that be her husband, the only justice to rule against releasing the January 6th documents like these texts?

(BEGIN VIDEO CLIP)

JUSTICE CLARENCE THOMAS, SUPREME COURT: I love to spend time with my wife, who is totally my best friend in the whole world.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

[09:42:40]

SMERCONISH: This is tape from moments ago, President Biden heading to the National Stadium in Warsaw to visit with some of the 2 million refugees from the Ukrainian conflict who have come to Poland. We'll bring you more on that as it happens.

Turning now to domestic politics, what are the political viewpoints of a Supreme Court justice's spouse to public's business? That's a question raised by the release of 29 text messages between Justice Clarence Thomas' conservative activist wife Ginni and Mark Meadows, the former Trump White House chief of staff, surrounding the events of January 6th and the election. As "The Washington Post" headlined the story by Bob Woodward and Robert Costa, "Virginia Thomas urged White House chief of staff to pursue unrelenting efforts to overturn the 2020 election, text show."

For example, right after the election she quoted to Meadows the language then circulating on pro-Trump sites -- quote -- "Biden crime family and ballot fraud co-conspirators, elected officials, bureaucrats, social media censorship mongers, fake stream media reporters, et cetera, are being arrested and detained for ballot fraud right now and over coming days, and will be living in barges off GITMO to face military tribunals for sedition." Adding, I hope this is true.

On November 10th after news organizations projected Joe Biden to be the winner she texted this, "Help this great president stand firm, Mark. You are the leader, with him, who is standing for America's constitutional governance at this precipice. The majority knows Biden and the left is attempting the greatest heist of our history."

Two weeks later, Meadows wrote to Thomas and said of the effort to overturn the results -- quote -- "This is a fight of good versus evil. Evil always looks like the victor until the king of king's triumphs. Do not grow weary in the well doing. The fight continues. I have staked my career on it. Well at least my time in D.C. on it."

Of course, Ginni Thomas has the same right to free speech as any American, but her reply to this text raises the question if her outlandish QAnon positions affect her husband's viewpoints on such matters. She wrote, "Thank you. Needed that. This plus a conversation with my best friend just now. I will try to keep holding on.

[09:45:00]

America is worth it." It begs the question, who does Ginni Thomas mean when she says my best friend? As Jane Mayer of "The New Yorker" twitted, best friend is how the Thomases refer to one another.

In 1999, Justice Thomas told a federalist society gathering, "It's great to be married to your best friend." He said that publicly many other times including at the Supreme Court Historical Society's annual lecture in 2019.

(BEGIN VIDEO CLIP)]

THOMAS: I love to spend time with my wife, who is totally my best friend in the whole world.

(END VIDEO CLIP)

SMERCONISH: Armstrong Williams, a longtime friend of Justice Thomas was quoted about Ginni in "The New York Times" magazine just last month saying, "It's his wife, it's his best friend, his most trusted confidante, and he loves her unconditionally. He doesn't agree with everything, but they work it out privately."

And after the 2020 election Justice Thomas has been a notable defender of former President Trump on the court. In February of 2021, Thomas wrote a descent when the court declined to hear a case filed by Pennsylvania Republicans seeking to disqualify certain mail-in ballots. And this past January, he was the only justice to vote against the release of Trump White House records related to the January 6 attack. What might these texts mean for his ability to rule impartially on these subjects?

Joining me now is Nancy Gertner, former U.S. district judge of the District of Massachusetts, currently a senior lecturer at the Harvard Law School. So the question I guess, Judge, is this, should Justice Thomas have recused himself regarding the election results and the events of January 6th?

NANCY GERTNER, SENIOR LECTURER, HARVARD LAW SCHOOL: Let me break it down into two parts. Should he have recused himself in the past and then whether or not he should recuse himself going forward with any case involving the election of 2020 or the January 6 investigation? Should he have recused himself from the past? I think he clearly should have recused himself about the case involving the subpoenas -- the January 6 committee subpoena of Meadows' records. Because he either knew that included in that box of materials that they were subpoenaing were texts that would implicate his wife. Or he should have known.

There's a wonderful -- you know, this is not a don't ask, don't tell situation. If you should have known or you believe -- reasonably believe that in that box of materials being subpoenaed included texts that could implicate your wife, then you should have recused yourself. The law that binds even the Supreme Court, although it's largely unenforceable, talks about situations in which your impartiality could reasonably be questioned.

And no one is saying that she doesn't have a right to her own activism. I'm certainly the last person who would say that. The issue is, in these cases, her documents, her words, her texts, will be in the box of materials that the court is trying to -- that the January 6th committee rather is trying to get. Should he recuse himself going forward now that all of this stuff has come out? I don't think there's any question that he should. The question is --

SMERCONISH: So, I agree with the way that you've framed this, although, I don't know about your articulation that he knew or should have known. Why should he necessarily have known that his wife was communicating through these channels with Mark Meadows?

GERTNER: Well, during -- other parts of the recusal statute talks about, you know, you have an obligation, for example, to find out whether your wife is involved financially in your cases. This, it seems to me, is an analogous situation. If he knows and was clear she was a public activist, that she's involved in these activities and there is at least a substantial chance that her activities would be, you know, concluded in the materials that are being turned over to the committee, then it seems to me you have an obligation to inquire further. You have an obligation to find out what's going on.

It really -- it would be one thing if she was involved, you know, in the activities in Ukraine, for example, and he had no idea. But that's really not what's going on here.

Let me add, it's not only that her talks to Meadows and her urging overturning of the election is involved here. But also the texts talk about the legal strategies to overturn the election. A legal strategy which necessarily involved going to the Supreme Court. So --

(CROSSTALK)

SMERCONISH: Judge, can I -- can I just underscore something? Can I just underscore she -- and I think you respect this as well, she's got a First Amendment right. I know when you were on the federal bench, correct me if I'm wrong, your husband played a leadership role with the Massachusetts ACLU, and I see an analogous situation where no one should have ask you to rein him in or vice versa. You know, he's got a right to say what he wants to say and you've got to go about your job.

[09:50:04]

It's where the two intersect, if at all, that is the issue. Final thought from you.

GERTNER: That's exactly right. We drew a circle around his work and my work.

The ACLU couldn't have an amicus brief in any case that I was involved in. The ACLU could not be involved in any way and vice versa. He would tell people that came to him, "You either choose Gertner or you choose the ACLU. You can't have both." And we were very strict about that.

SMERCONISH: Thank you, Judge. Appreciate your time.

GERTNER: You're welcome. Take care.

SMERCONISH: Still to come, more of your best and worst tweets and Facebook comments. And we'll give you the final results of this week's survey question. Go to Smerconish.com. Should NATO respond if Russia uses chemical weapons in Ukraine?

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[09:55:17]

SMERCONISH: Just moments ago, President Biden arriving for meetings with Jose Andres of the World Kitchen, about to greet some Ukrainian refugees in Poland. We'll stay on that story.

Here's how you voted at Smerconish.com on this week's survey question. Should NATO respond if Russia uses chemical weapons in Ukraine?

Final results are as follows. Wow. A lot of vote. Holy smokes. Do you -- do you think that was a decisive result?

Time for one social media -- 97 percent. Wow and 22,000.

Smerconish, the president should not have attempted a visit to Ukraine. Given the security issues, it may be perceived as a reckless stunt.

Hey, Petelx, your handle, I trust the judgment of the Secret Service. I'm sure if he could have gotten there, he would have gotten there.

Stay tuned to all the coverage from Poland. I'll see you next week.

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