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Smerconish

Report: "Speculation Over Whether Biden Will Run Again Heats Up"; Should Social Media Ban Talk Of "Replacement Theory?"; Immigration Issue Shaped D.A.'s Fentanyl Prosecutions; Analyzing Body Language In Depp Versus Heard Defamation Case. Aired 9-10a ET

Aired May 21, 2022 - 09:00 ET

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

(COMMERCIAL BREAK)

[09:00:34]

MICHAEL SMERCONISH, CNN ANCHOR: Should JRB go the way of LBJ?

I'm Michael Smerconish in Philadelphia.

Presidents always have a full plate, but Joe Biden is now carrying the weight of the full buffet. Inflation skyrocketing, record gas prices, the Dow and S&P 500 in downward spirals, COVID back in some areas, a potential mass migration event at the border, power outages said to be coming, and of course the Russian invasion of Ukraine which just added 40 billion to America's tab. We can debate whether any one of these items is truly the fault of the president. But the reality is, they are all unfolding on his watch.

And hear from the midterms, typically the party in the White House sees the loss of about two dozen of its congressional seats. This year, Democrats seem headed for much worse. There just aren't enough ultra MAGA, Doug Mastriano is nominated in the primary process that could allow focus next November to be taken off this national funk. A few aberrant diversions to be sure, but too few to stop the tidal wave in the forecast.

Americans are really feeling the pinch with inflation at a 40-year high. Until recently, there had been some consolation for the 58 percent of Americans in the stock market because it was still doing well. But that's no longer the case.

This week, the S&P and Dow had historic down days. Friday, the S&P 500 briefly fell into bear market territory, slipping more than 20 percent from its record high. Target reported a stunning 52 percent drop in profit for the first quarter. Shares plunged 25 percent in one day, its worst day since 1987's Black Monday.

The retail giant blamed higher expenses due to continued supply chain disruptions and inflation making consumers hold off on nonessential purchases. Gas prices, which affect all of us are hitting new highs with a record average of $4.59 per gallon already $6 in California. By August, JP Morgan predicts the national average is going to be $6 a gallon. In Washington State, the national gas chain 76, already reprogramming its pumps to accommodate the possibility of prices exceeding $10 a gallon.

Meanwhile, runaway diesel prices threatening America's infrastructure because of how those costs hurt farmers and truckers and trucking companies. And then there's the fragile power grid, fossil fuel sources are being cut back faster than new ecological alternatives can replace them. This week, regulators warned that this summer's extreme temperatures and ongoing drought could cause the grid to buckle across vast areas of the country potentially leading to electricity shortages and blackouts.

Looking beyond the economic issues, how about immigration? In the month of April the record 234,000 people were encountered at the Mexican border. And though a federal judge blocked Monday's lifting of Title 42, if and when it does end, there are estimates that as many as 18,000 will show up every day.

In other international crises, there's our complicated involvement with Ukraine, fighting Russia's invasion, which by the way feels like it's slipping lower and lower into the public consciousness. Even as Thomas Friedman of "The New York Times" warned us here last week that we're actually edging toward actual war with Russia.

And this week as President Biden is visiting South Korea, U.S. intelligence reports say North Korea may now be getting ready to fuel an intercontinental ballistic missile, meaning possibly an imminent test launch.

And if you thought that COVID was in the rearview mirror, think again, cases are rising and could get worse in the coming months. About a third of Americans are living in areas where the rates of COVID are so high. Officials are recommending masking in indoor public places.

And now we have to worry about monkeypox? So, what could be even worse than all of the above? How about empty shelves for baby formula? Could there be any worse political optics than moms not able to feed their babies?

As I said it's a category five political storm. No wonder then that in a recent AP/NORC poll, President Biden scored his lowest ever a mere 39 percent job approval rating with 60 percent disapproving. And I don't see an opportunity for a reset on the horizon.

With the Senate deadlocked, 50-50 plus Vice President Kamala Harris, let's stop kidding ourselves the Republicans won't give this administration the satisfaction of passing anything of consequence between now and the midterms. So there's just not a prospect of rescue legislatively. God forbid, there's some catastrophe that makes us rally around the flag, though I don't even know if we would do that these days.

[09:05:25]

Politically, it's the bleakest of pictures imaginable for the White House. So what is the President to do? This week, Amie Parnes and Hanna Trudo published a piece in "The Hill" saying, "Everywhere you go in Washington, people are wondering the same thing, Will Joe Biden run for reelection?"

Clearly, those people are not taking him at face value because he has said that he will. No doubt the fact that he will be 81 in November of 2024 is a major reason that some people are disbelieving. And I'm among the skeptical.

Now listen, I don't say that with any animus. To the contrary, I wish good things for the President's leadership and his personal health. He's a patriot, a decent and honorable man. But I can't see him running again.

And maybe he needs to deal with that reality sooner than later. There's precedent.

In 1968, Lyndon Johnson, who in 1964, had won the biggest political landslide in American history when he defeated Barry Goldwater found himself weighted down by the war in Vietnam. So on March 31, 1968 he scheduled an Oval Office address about the war. After speaking for 40 minutes, President Johnson then stunned even his closest associates by reading a statement that had not been included in the printed text, and which he'd written himself.

The President said that there was, quote, "division in the American House." And he said he was withdrawing from the race in the name of national unity, which he said was, quote, the "ultimate strength of our country."

(BEGIN VIDEO CLIP)

LYNDON B. JOHNSON, 36TH PRESIDENT OF THE UNITED STATES: I do not believe that I should devote an hour or day of my time to any personal partisan causes or to any duties other than the awesome duties of this office, the presidency of your country. Accordingly, I shall not see, and I will not accept the nomination of my party for another term as your president.

(END VIDEO CLIP)

SMERCONISH: Imagine if President Biden decided likewise and said so now. Some will no doubt argue that he made himself a lame duck. But I would say in this divided environment, that's a relative expression. The filibuster precludes any legislative achievement now, and certainly even more so after the midterms.

I don't think he'd be sacrificing any real power that he holds today. In fact, he might just strengthen his hand. The President has told us that he ran for office after Charlottesville, calling it a battle for the soul of the nation. He ran in a bid to stop Donald Trump from a second consecutive term and he succeeded.

He can announce with his head held high that the totality of calamity faced by the nation demands that his every waking moment applies to those problems, and he doesn't think it appropriate for him to divert his attention to his own reelection. Think about the alternative. The alternative is to be the face of the shellacking Democrats will likely take in November, and then he'll have to endure pressure within his own party to reevaluate his future plans. Maybe better to do it on his terms more immediately.

I want to know what you think. Go to my website, @smerconish.com and vote on this week's survey question, Should Joe Biden announce now that he's not running for re-election?

Joining me now is Amie Parnes, Senior Correspondent for "The Hill," co-author with Jonathan Allen, of "Lucky, How Joe Biden Barely Won the Presidency."

Amie, welcome back. Your piece in "The Hill" inspired my thought process. You've been sitting there like everybody else listening. What do you think of what I just said?

AMIE PARNES, SENIOR CORRESPONDENT, "THE HILL": I happen to agree with a lot of it. But it's -- more importantly, I think a lot of Washington is kind of wondering as -- and that's why we penned this piece, kind of wondering why everyone is asking, even outside of Washington, do you think the President will run again? He's going to be in his 80s, is that really appropriate? Will the country be in OK terms?

And so, I think this is the big question that's haunting people right now. And the big thing is, he wants to run for president. People close to him have told me that. He's told former President Obama he wants to run. It's serious.

He thinks he is the only person who can beat Donald Trump or Governor DeSantis in 2024. And that is the big -- that's what he is thinking about right now.

[09:10:08]

SMERCONISH: OK. You reference former President Trump who was sitting on about $100 million in campaign cash. Has President Biden undertaken any steps, apart from telling President Obama or telling the public, I'm going to run, is he doing the sort of things that a candidate at two years out needs to be doing?

PARNES: He is -- I think he's basically frozen the Democratic establishment right now, because everyone thinks, everyone is waiting on him to decide whether or not he's running because people assume that he is. And they look at Kamala Harris, the Vice President, and they say, she's not quite ready yet, she's not quite ready for primetime. We -- there were really big expectations for her coming in and she hasn't really met them. And they're looking at the Democratic field and saying, well, who else? Pete Buttigieg, maybe someone else.

But a lot of people think that the Democratic Party bench is very weak right now. And so, it might be buying a little bit of time for other people to kind of come to the fold. But I think a lot of people look to the President as someone who is the only person who can do this again. He did it the first time, a lot of people said, OK, all these doubters thought that he couldn't beat Donald Trump the first time, and look, he did it and he can do it again.

SMERCONISH: I'm anticipating critics who will say to me, why would he possibly surrender his power? But you heard my explanation. I don't see him doing as such. In fact, I think there's an argument that he actually enhances his standing, you remember, maybe in the '80s, let Reagan be Reagan.

Imagine, Joe Biden can be the authentic Joe Biden. Doesn't have to worry about the squad, doesn't have to worry about Bernie, he can be the more centrist de that many of us continue to believe he is.

PARNES: And a lot of people agree with you, Michael. I mean, he has been a little bit hindered, he has been a little bit held back, he hasn't been able to be himself in the presidency, his aides have kind of kept him shackled for lack of a better term, because they don't think that he can say the things he wants to say without stepping -- without putting his foot in his mouth. And so, I think all of this, I think you have a point and a lot of people agree with you, but who can actually win in 2024? That is the bigger question.

SMERCONISH: Right. But he's going to get sucked into that as soon as the midterms are over. And that's when I think he'll be facing pressure, like I'm discussing. So -- well, you've heard my pitch, get out in front of it now.

I find your assessment of what happens visa vie Kamala Harris to be interesting. And I'm recommending that everybody read your piece. I'll put it in my social media again.

Thank you, Amie.

PARNES: Thank you.

SMERCONISH: What are your thoughts? Tweet me at Smerconish. Go to my Facebook page. I will read some responses throughout the course of the program.

What do we have Catherine?

Smerconish doesn't even pretend to be independent, he is hostile to Joe Biden.

Bluebaycrab, to the contrary, did you not hear me say I'm coming at this with his best interest and that of the nation at heart? You heard me say, I hope that I wish good things for the President, for his health. I regard him as a patriot. I think that he is a decent and honorable man. Did you not hear me say every one of those things?

And so, because I'm willing to address the subject that is the elephant in the room, you think that I'm here to cheap shot him, to the contrary. But I want to hear from everybody else by going to my website @smerconish.com and answering this week's survey question, Should Joe Biden announce now that he's not running for reelection?

Up ahead, in the wake of the tragic Buffalo mass shooting, we've been hearing a lot about great replacement theory. Some people want social media to ban the topic all together. Is that desirable? Is it even possible?

Plus, in 2021, fentanyl killed nearly 500 San Franciscans and yet not a single fentanyl dealer was convicted by D.A. Chesa Boudin. Why not? And will it cost him his job in the recall election on June 7.

(COMMERCIAL BREAK)

[09:18:18]

SMERCONISH: Should social media clamped down on the spread of conspiracies like the great replacement theory? That question arose again in the wake of last weekend's mass shooting in Buffalo, New York because of a 180-page screed posted by the gunman before the shooting that refer to that dogma several times. In short, it's the claim that there's a nefarious effort to replace white Americans with nonwhite immigrants for electoral gain to achieve a political agenda.

The Buffalo shooter plagiarized some of his manifesto from the shooter who live streamed his killings of 51 in a mosque in Christchurch, New Zealand in 2019. The same theory has been cited as justification by several other mass shooters, including the 2019 Walmart incident in El Paso, Texas that killed 23, the 2018 Pittsburgh's Tree of Life synagogue shooting the killed 11, the 2015 shooting in Charleston, South Carolina church that killed nine, the 2019 killing of a congregant in Poway, California in a synagogue.

It's not just deranged gunman who believe the theory, you'll also recall one of the rallying cries in the white supremacist march in Charlottesville 2017. Roll that audio.

(BEGIN VIDEO CLIP)

MULTIPLE SPEAKERS (chanting): Jews will not replace us.

(END VIDEO CLIP)

SMERCONISH: And according to a recent AP/NORC poll, when presented with the statement, "There is a group of people in this country who are trying to replace native-born Americans with immigrants who agree with their political views," 32 percent of Americans agreed.

On most of the big social platforms hate speech that's directed at a specific group and related threats of violence are viewed as a violation of terms and service. This week, "The Washington Post" reported that the Buffalo shooter, instead of a chat room on a social media platform before he live streamed and that 15 people had joined when the shooting began.

[09:20:11]

A new Texas law calls into question if platforms can moderate content at all. And CNN reports, "In the name of free speech House Bill 20 prohibits social media companies from blocking, banning or demoting user posts or accounts, and enables Texans to sue the platforms if they believe they've been silenced." A federal appeals court allowed the law to take effect last week. So now it might be up to the Supreme Court as to whether law violates tech platforms first amendment rights.

Is it desirable? Is it possible to scrub the, quote, "replacement theory" from social media? Joining me now is Courtney Radsch, a fellow at the UCLA Institute for Technology Law and Policy.

Dr. Radsch, thank you for being here. We refer to the First Amendment, but it's really not a First Amendment issue per se, right? These are private platforms. They can establish their own rules.

COURTNEY RADSCH, FELLOW, UCLA INSTITUTE FOR TECHNOLOGY, LAW & POLICY: That's right. So actually, platforms have their own first amendment rights. And they have the right to decide what they want to allow to be sad, as well as what they don't want to be allowed -- said on their platforms.

SMERCONISH: So what sort of things traditionally are banned from the better known social media platforms as of now?

RADSCH: So, there has been a convergence around kind of the community standards or Terms of Service of the major social media platforms where they prohibit graphic violence, the promotion of terrorism or violent extremism, hate speech, some -- in some cases, racist speech, sexual or nudity. So, there is this convergence around that. But I think one of the problems is we're talking about, you know, a lot of this being done on alternative media platforms. And of course, you can't undercut the role that the mainstream media plays in all of this.

SMERCONISH: Well, and isn't some of it rather subjective? I mean, of course, we all remember in the 11th hour of the campaign that the dissemination of information about Hunter's laptop was squelched. That was, quote unquote, "disinformation," but it really wasn't disinformation. Couldn't you see the same arguments being made in this case?

RADSCH: I think it's a little bit different. That was a very particular news story. It was a political, you know, during an election. I think that was a problematic intervention from the platforms.

But I think what we're talking about more broadly is, can a social media platform banned discussion of an ideology. And I think that there are different radiations of how platforms can deal with discussion. No, they should not ban discussions.

However, they don't have to promote the accounts. They can prohibit the glorification of this theory, the promotion of this theory, they've done that with Jihadist terrorism. They've done that with Holocaust denial. So they could add this in, but they're not going to be able to ban discussion of it, because fundamentally, there are political issues there. And you have politicians themselves who are speaking about this every day.

SMERCONISH: Well, not just politicians, but some of the mouthpieces, you know who I'm talking about, that politicians follow. I mean, it'd be kind of odd, wouldn't it, that you could go to a particular cable outlet and hear these views espoused in prime time, but you couldn't go on Facebook or TikTok or Twitter and see the same viewpoint?

RADSCH: It would be odd. That said, you know, Fox News has its own agenda, CNN has its own, you know, approach. I mean, luckily, I think a lot of mainstream media is trying to do good journalism, they want to do fact check journalism. The social media platforms can decide that they're not going to amplify and feed fuel to this fire. They can make it harder to find these videos, these manifestos.

They can't make it impossible because 4chan is not part of this collaboration. You do see, for example, Twitch reacted against the video right away. So there are these platforms for collaboration.

But we should also be concerned if we hear about the discussions to ban discussion of a theory. We've already seen that triad and legislation to ban discussion of critical race theory in classrooms. We shouldn't be seeing bans of theories, we need to see bands of promotion and demotion of accounts and content that promotes really vile, genocidal ideologies.

SMERCONISH: And Dr. Radsch, I would simply add, I don't want to drive these folks underground. I'd rather deal with them and confront them. You get the final word, but you have to make it quick.

RADSCH: Well, I don't know that driving them underground just because they're not allowed to propel their Facebook, you know, and Twitter accounts into the mainstream is that they're going to go underground, there's still plenty of ways for them to connect. So I think we should try to get them out of the mainstream.

SMERCONISH: Thank you so much for being here. Appreciate your expertise.

RADSCH: Thank you. My pleasure, Michael.

SMERCONISH: What are you saying via social media, my Smerconish Twitter, Facebook, YouTube pages, what do we have? Always with the communist playbook, censorship.

Christopher James, it's a tough problem to confront because we don't want lies and hate speech circulated among us by the same token, though. Sometimes you give strength to so called movements when you do ban it. You heard me say to my guest, Dr. Radsch, I'd rather confront these people and prove them to be wrong.

[09:25:17]

But it's a tough area to police. I mean, I happen to believe that immigration policy impacts electoral politics. How could it not? But by the same token, I don't think there's a cabal among us where people are setting policy because they want to turn the country blue and red states. So, would I be able to say that if all of a sudden that sort of speech were censored? I hope I'd be able to.

I want to remind you go to my website, @smerconish.com. People are pretty hot about me even asking the question. I hope you heard my opening commentary where I explained it, should Joe Biden announced now that he's not running for reelection?

Up ahead, one big reason for San Francisco D.A. Chesa Boudin facing a recall election in the middle of his city's surging Fentanyl crisis that last year killed nearly 500 people. His office reportedly did not secure a single conviction for dealing the drug. How come? We'll discuss.

And a different way of looking at America's current reality show obsession, the dueling Johnny Depp, Amber Heard defamation lawsuits. Beyond all the nasty things that are being said, what does their body language tell us about their testimony?

(COMMERCIAL BREAK)

[09:30:52]

SMERCONISH: Voters in San Francisco will decide just weeks from now whether to recall the man who is arguably the country's best known progressive prosecutor. San Francisco District Attorney Chesa Boudin is fending off accusations that he has been too soft on crime as rising rates of burglaries, homicides and drug dealing continue to plague the city since he took office in 2020.

The recall is set for June 7th. It's being watched all across the country. Boudin is the highest profile of this new breed of progressive prosecutor and the effort has a good chance of succeeding.

A new poll by EMC Research shows nearly seven in 10 city residents would vote for his recall. And now an interesting new analysis of court documents by "The San Francisco Standard" could worsen an already tough situation or to the beleaguered D.A. The lead of their report reads as follows -- quote -- "Despite a surging fentanyl crisis that killed nearly 500 people last year in San Francisco, the office of District Attorney Chesa Boudin did not secure a single conviction for dealing the deadly opioid for cases filed during 2021, according to a review of court data."

Instead "The Standard" says that Boudin's office has opted to hit defendants with the lesser accessory after the fact charge. The explanation for this, immigration policy. Because most drug dealers arrested in San Francisco are undocumented "The Standard" says -- quote -- "Prosecutors and criminal defense attorneys point out that drug dealing convictions are grounds for deportation, and a substantial number of drug dealers in the city are Honduran nationals who could face deadly consequences if deported. The accessory charge still gives them and their families a path toward eventual citizenship."

Honest to God, it's like I'm reading from The Onion. California state law does require prosecutors to take immigration status as a consideration when asking for conviction. But Boudin has expanded this process aggressively. The San Francisco District Attorney's Office said in a statement to CNN that the premise of "The Standard's" story was false. Here's what they said.

"District Attorney Boudin has achieved hundreds of drug convictions, including fentanyl cases. The article is focused on what kind of conviction is achieved, which is highly misleading. The D.A. has a high conviction rate for drug crimes and is complying with California law that requires prosecutors to consider immigration consequences in plea negotiations."

Here to discuss is the author of the new book entitled "San Fransicko: Why Progressives Ruin Cities." Michael Shellenberger joins me now. He's an author, environmentalist and right now is an independent running to be California Governor Gavin Newsom's opponent.

So, Michael, homelessness, the label that we affixed to many of the fentanyl addicted in San Francisco and elsewhere in the country you think that there is a semantic issue here of importance that sets policy. What am I making reference to?

MICHAEL SHELLENBERGER, AUTHOR, "SAN FRANSICKO: WHY PROGRESSIVES RUIN CITIES": Good to be with you, Michael. It's a pleasure to be back on CNN.

Yes. I think when we refer to homelessness what most people are describing are the open air drug markets or what Europeans call open drug scenes where people who are in such late stage addiction actually end up living in the open air drug markets right near the dealers. And then with that comes the shoplifting that addicts are often doing in order to support their habit, the sex work, a huge amount of sexual assault. I've documented and others have documented among folks living on the street.

And so there is really only one thing all civilized society must do which is, you must shut down the open air drug market that requires prosecuting the dealers, that requires getting addicts into drug treatment programs. This is what Europe did in the late 1980s and 1990s. It requires the coordination of police and social workers.

And in California, the situation is so out of control it actually is going to require the governor to be involved, the mayors to be involved, and maybe even the National Guard in order to long-term suppress this open air drug dealing.

[09:35:00]

SMERCONISH: In other words, I read your book and what I took away, among other things, is that when you cast this as homelessness it's thought of in a shelter context when in fact it's drug addiction and it's mental health that is driving the equation. You cited a study by a UCLA sociologist who looked at a treatment approach on Skid Row, in Los Angeles and one in Malibu. What am I making reference to?

SHELLENBERGER: Well, it's very interesting. Because, of course, these very expensive drug rehab programs for wealthy celebrities they actually use tough love. People that pay $50,000 a month for rehab are getting very strict discipline-oriented rehab to get into recovery.

What we find for poor people, low-income people, people who are using public services, it is much more hands-off attitude. It is far too laissez faire. People don't get the recovery they need.

You know, we've -- we have dealt with addiction for at least 150 years since after the Civil War when many people became addicted to morphine. We know that when friends and family are no longer able to make an intervention with their loved ones who are suffering from addiction people often become -- they often break laws. They become the responsibility of societies.

Some amount of coercion is required for people to -- some people to get into recovery. That's what Europe has discovered. That's what Japan has discovered. We have just gone too far in one direction in California, which is this hands-off approach, and it's really destroyed obviously thousands of people are dying but also it has --

SMERCONISH: Michael --

SHELLENBERGER: -- really destroyed the fabric of the city.

SMERCONISH: Michael, quickly, should immigration status be something that holds back via state law or a decision by a prosecutor, how you're going to treat a drug dealer? Take 30 seconds and address what I referenced in your introduction.

SHELLENBERGER: Absolutely not. We have the sanctuary law which is supposed to be for refugees from Central America, Latin America. It's an important protection of refugees. But it's being grossly abused by the district attorney, by other politicians in California. They're letting violent and dangerous drug dealers who are killing our citizens off the hook by abusing that sanctuary law.

As governor of California, I will put an end to that. We're going to shut down the open-air drug scenes, the open air drug markets and get people the help that they need, that they deserve.

SMERCONISH: I mean, it seems to me that if I'm a prosecutor, my consideration might be, and I don't wish for bad things to happen to anybody. But maybe if this guy gets sent back to Honduras and something bad happens to him, the word then comes back to San Francisco and no more of the Honduran migrants deal drugs because they don't want to be like that guy.

Thank you, Michael. Appreciate you being here.

SHELLENBERGER: Thanks for having me, Michael.

SMERCONISH: Checking in on your tweets and Facebook comments and YouTube, et cetera, et cetera. What do we have?

How about we make drugs legal and focus on rehabilitation. Carl White.

Carl White, 20 years ago, if you said that to me, I would have scoffed and said how ridiculous. All of a sudden, we're going to open up drug addiction to all of society where at least right now it's relegated to a small few. But I'm no longer scoffing. I think we should absolutely give serious consideration to exactly that. And I think that Shellenberger is also onto something when he says casting this as a homeless issue really doesn't address what's driving it.

With a Philadelphia City councilman, I'll give him a shout-out. Allan Domb is his name. Three weeks ago, I was in the Kensington section of our city right here, K and A. The infamous, you know, Walmart of open- air drugs. It's not a homeless issue. It is a drug issue.

It's so damn sad and to think that as the crow flies a quarter mile away, a half a mile away, you know, you have new millennials and Gen Xers who are eating at sushi restaurants and were like oblivious to this. How the hell did we let it happen in the United States?

Anyway, I want to remind you answer the survey question at Smerconish.com. Should Joe Biden announce now that he is not running for reelection?

Still to come, so many opinions are flying around about the Johnny Depp and Amber Heard defamation showdown in a Virginia courtroom. But apart from what they are saying in their testimony, what about their body language? I'm about to ask an expert.

(COMMERCIAL BREAK)

[09:43:53]

SMERCONISH: What might we be able to read from the body language of Johnny Depp and Amber Heard in the courtroom of their defamation case? In this week's installment of the world's current top reality show, jurors heard testimony from former Depp friends and associates who described strain on their relationship with the actor and his alleged substance abuse as it increased.

You likely already know that Depp has sued Heard for $50 million alleging that a 2018 op-ed she wrote in "The Washington Post" about being a survivor of abuse defamed him, though it did not mention him by name. Heard then counter sued Depp for $100 million saying statements that his attorney made calling her abuse claims a hoax were themselves defamatory.

Joining me now is Janine Driver. She's a body language expert, president of the Body Language Institute, author of the book "You Can't Lie to Me." Janine, I can't get enough of you on court TV. That is why you are here. Before you offer any opinion give my audience 30 seconds as to what qualifies you to read body language.

JANINE DRIVER, BODY LANGUAGE EXPERT/PRESIDENT, BODY LANGUAGE INSTITUTE: A little shy of two decades with federal law enforcement, the Bureau of Alcohol, Tobacco and Firearms. My dad said I'm his daughter who turned our hobbies into a career, drinking, smoking and shooting.

[09:45:00]

But sincerely my specialty is firearms trafficking. I interviewed thousands of people. I have trained agents from the CIA, from the FBI, from the Scotland Yard police. I have trained clandestine spies.

And today I help companies reduce hiring mistakes, HR events by 89 percent. And I help companies and train sales team from Coca-Cola, Booz Allen Hamilton, Lockheed Martin, Abbott, ADP, Kronos. The list goes on and on. So that's what I do.

SMERCONISH: All right. I accept, I accept, I accept your credentials. Let's go to the tape.

I'm a trial lawyer. Ten years of trying cases. I never hugged any of my clients in a courtroom like this. What is going on with Johnny Depp and his lawyer?

DRIVER: You know, Michael, a lot of people think they're hooking up. But I trained at the Federal Law Enforcement Center in Georgia. We call it FLETC, Federal Law Enforcement Training Center. And if you saw flirting like this on week one and it stopped week two you knew they were hooking up.

If in fact, there is a relationship here, this would not be happening. This would be in clandestine mode. I think this is to get Amber's goat. And at the end of the day he has this rapport with everyone even Ben Chew.

They're all touching and hugging him. They have great rapport together. And it could be strategic to say, listen, this beautiful, young woman voted as one of the top lawyers to watch this year and last year in the country of the United States of America is touching him, patting him, looking at him, adoring him, that if she likes him, and she's smart and beautiful, maybe he's not that bad.

SMERCONISH: Right. In other words, is it for the jurors to think, hey, he's a good guy, look at the relationship that he has with his own lawyer?

DRIVER: I think it is genuine relationship where they like each respectfully. You know, she has a boyfriend, evidently, out of the U.K. Johnny even told one of the people in the courtroom they are just an attorney/client that get along really well. I think, yes, they kick it up a notch to have the jury.

But I'm going to tell you. I was in the courtroom. This jury is a little disengaged, in my opinion, most of them.

SMERCONISH: Disengaged? How could you be disengaged? I'm at home watching all that my schedule allows.

All right. Something else. Of course it comes down -- it's a he said, she said. Who do you believe?

I want to show Amber Heard's emotional testimony. For this I want the audio and video. So, let's listen and watch.

(BEGIN VIDEO CLIP)

AMBER HEARD, ACTRESS: I don't want to do this. I don't want to do this.

(END VIDEO CLIP)

SMERCONISH: What are you seeing? What are you hearing?

DRIVER: This is fake. This is bad acting. And I do believe her, though. I think she is telling the truth when she said she doesn't want to do this. She doesn't want to do it because even her acting coach said she's bad at fake crying. She's not good at acting it up.

When we cry and it's authentic, Michael, our eyes have things called tears, our nose run. She breathes in instead of breathing out. And we don't see these deep swallows. This is really bad acting.

And sadness comes at a slow roll. We saw Johnny get sad. We saw his artist friend get sad in the courtroom. This is fake sadness. Her inner eyebrows aren't pulled together enough. Bad, this is bad acting.

SMERCONISH: OK. Let me -- let me show third clip if we can quickly. Johnny Depp, while she's testifying, he won't even look at her. What's going on with this?

DRIVER: A lot of people think that, you know, what is this? Is this some strategy? Maybe it is. In the courtroom, Amber's lawyer said it's because -- or Amber said herself it's because he knows he's guilty. I don't think that's the case.

I myself am a battered women survivor. I have talked with battered women survivors. Most battered women won't look at the abuser in the courtroom. Every now and then it might happen. And we do see Johnny look up every once in a while. And Johnny's lawyers said it's because he said, I'll never look at you -- you'll never look at me in the eyes ever again.

SMERCONISH: Here's my prediction, Janine. The jury concludes they deserve each other. Your thought?

DRIVER: I think this case is nuttier than a Snickers bar, Michael. It is crazy. And I love every second of it.

SMERCONISH: Janine, thank you for being here. I sadly agree with you.

DRIVER: Thanks, Michael.

SMERCONISH: Checking in on more of your tweets and Facebook comments. From the world of Twitter, I think, what do we have?

Amber is doing a lot of acting.

There was a piece written this week that said like the whole thing is just a giant hookup. Honest to God, it's like a Tinder -- you know what? I shouldn't even expand on my theory. It wasn't my original theory, by the way, but you couldn't make it up. Best I end the segment.

Still to come, more of your best and worst tweets and Facebook comments. We'll give you the final result of the survey question. When you go to Smerconish.com make sure you register for the daily newsletter and answer this question. Should Joe Biden announce now that he is not running for reelection?

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[09:53:52] SMERCONISH: I just put this in my Twitter feed @Smerconish. I was making reference to it at the end of the last segment. Eleanor Harmsworth wrote for "The Spectator" about Amber Heard and Johnny Depp among other thing. Quote -- "At certain points it almost seems as if one of the two catches the other's eye for a moment whilst giving testimony, and you the viewer can sense a bat's squeak of sexuality that appears to be imperceptible to the court." I concur.

Time now to see how you responded to the survey question at Smerconish.com. Should Joe Biden announce now that he is not running for reelection?

Survey says. Wow. Let me tell you what surprises me about this -- a lot of votes, 21,438 -- the closeness of the margin. Because I fully expected that with the CNN audience offering my perspective that I would be in a distinctive minority, but that's not the case, pretty close result. Continue to vote and subscribe to the newsletter when you get there.

What came in from social media? Let's take a quick look.

Smerconish, Trump first. Biden should not announce his future -- yes, let Trump say he's not running and then Biden can announce that he won't either.

[09:55:04]

I don't know what Trump is going to do but he's sitting on a lot of money. And if Joe Biden is serious about running you'd think he'd be raising funds already.

Another from social media. What do we have, Catherine?

Last week I observed if it's the contest of the visual the nun looking wife came off looking much better than the Johnny man bun.

What's amazing to me and this is all anecdotal but based on conversation with my SiriusXM radio audience and people in my orbit is the way that women seem suspicious of her and accepting him. I said to Janine Driver, my guest, my hunch is that the jury thinks they deserve each other, has had enough of both of them, and I'd be shocked if he were successful in this case. But who the hell knows? You just couldn't -- you just couldn't make it up.

Thank you for watching. Continue to follow me on social media. Vote on the survey question if you didn't already and I'll see you next week.

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