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Smerconish

Should Date Of Election Influence Timing Of Any Trump Trial?; AG Appoints Special Counsel In Hunter Biden Case; Are Educated Elites the Bad Guys?. Aired 9-10a ET

Aired August 12, 2023 - 09:00   ET

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

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[09:00:23]

MICHAEL SMERCONISH, CNN ANCHOR: It's a trying time for America. I'm Michael Smerconish in Philadelphia. There's no date that Donald Trump could be tried in the next 15 months, the time between today and Election Day, November 5, 2024 that would not pose a conflict with campaign events. The first debate in just two weeks and then the calendar thereafter littered with debates and caucuses, primaries and convention. Does that mean that Trump should not be tried before the election?

No, the cases should proceed as they would where the defendant not a presidential candidate. Trump trials should not be postponed because of the election in which he has chosen to run. But nor should they be expedited. I've noted here before that there's a long and noble tradition at DOJ of not wanting to act in a way that might be perceived as political. In fact, five recent attorneys general Republicans and Democrats have all signed the same memo affirming the importance of keeping politics out of investigations and criminal charges. Republican Michael Mukasey in 2008, Democrats Eric Holder in 2012, and Loretta Lynch in 2016, Republican Bill Barr and 2020 and Democrat Merrick Garland, just last year, they've all used the same language, including this paragraph, quote, "Simply put, politics must play no role in the decisions of the federal investigators or prosecutors regarding any investigations or criminal charges. Law enforcement officers and prosecutors may never select the timing of investigative steps or criminal charges for the purpose of affecting any election or for the purpose of giving an advantage or disadvantage to any candidate or political party. Such a purpose is inconsistent with the department's mission and with the Principles of Federal Prosecution."

The U.S. attorney's manual has similar language and it all makes sense. But think about it, If law enforcement officers and prosecutors may never select the timing of investigative steps or criminal charges for the purpose of affecting any election, then surely the logic would preclude them from influencing the timing of a trial for the purpose of affecting an election. And it seems like the special counsel is deliberately pushing to get the January 6 case heard before Americans vote.

The most recent indictment, it lists six unindicted coconspirators. And it's true, that might be a strategy used to get those individuals to flip. But unless and until such time as they're indicted, it also makes the case against Donald Trump much more straightforward, much more streamlined for trial. The purpose of Friday's hearing was to discuss a DOJ request for protective order, which, if granted, will similarly accelerate the pretrial discovery process in that case, which reminds me that in the Mar-a-Lago case, special counsel has given much more information to the Trump defense lawyers than they're entitled to at this stage pretrial.

In the January 6 case, the special counsel's office on Thursday told Judge Tanya Chutkan, they'd be ready for trial this coming January 2, it's a sprint. And it means that among the three existing cases, this one would go first, notwithstanding that the feds indicted Trump for the Mar-a-Lago documents case before indicting him for January 6. The New York case brought by Manhattan DA Alvin Bragg that set for next March, the Mar-a-Lago case pending in federal court in Florida that set for May, and next week, many expect Fulton County DA Fani Willis to initiate a fourth indictment against Trump.

In it's filing to judge Tanya Chutkan, the special counsel's office said its presentation of evidence would take, quote, "No longer than four to six weeks." And in the filing, prosecutors said the rapid pace was needed given the gravity. And historic nature of the charges, quote, "It is difficult to imagine a public interest stronger than the one in this case in which the defendant, the former president of the United States is charged with three criminal conspiracies intended to undermine the federal government. Trial in this case is clearly a matter of public importance, which merits in favor of prompt resolution."

Well, it's certainly a matter of public importance. But why exactly does it merit more prompt resolution than any other case? According to Trump, via Truth Social, it's because the Feds want their say before the American people get theirs. Quote, "Deranged Jack Smith has just asked for a trial on the Biden indictment today take place on January 2nd." "Such a trial," says Trump, "should only happen, if at all, after the election the same with the other fake Biden indictments election interference."

[09:05:10]

In Friday's hearing, Judge Chutkan addressed the issue of Trump being a candidate telling his attorney John Lauro, "The fact that he is running a political campaign currently has to yield to the administration of justice. And if that means he can't say exactly what he wants to say in political speech, that's just how it's going to have to be." Chutkan also respond to two defense complaints about the timing, saying, "I see a desire to move this case a long," adding that she hasn't seen any evidence that it's politically motivated.

But at the hearing, at the end of the hearing, the judge also quoted a Supreme Court decision which reads, "It is a bedrock principle of the judicial process in this country that legal trials are not like elections to be won through the use of meeting hall, the radio and newspaper adding this case is no exception." And then she offered this warning, "The more a party makes inflammatory statements about this case, which could taint the jury pool, the greater the urgency will be that we proceed to trial quickly."

Why should Trump's extra judicial statements have any impact on the pace with which he's tried? On Tuesday, the "New York Times" published an essay from a prior guest of mine here, Harvard Law Professor Jack Goldsmith, it came under the headline, The Prosecution of Trump may have Terrible Consequences. And in it, he wrote these words, "Even if the prosecution succeeds in convicting Mr. Trump before or after the election, the costs to the legal and political systems will be large. There's no getting around the fact that the indictment comes from the Biden administration when Mr. Trump holds a formidable lead in the polls to secure the Republican Party nomination and is running neck and neck with Mr. Biden, the Democratic Party's probable nominee.

This deeply unfortunate timing looks political and has potent political implications, even if it's not driven by partisan motivations. And it is the Biden administration's responsibility as its Justice Department reportedly delayed the investigation of Mr. Trump for a year and then rushed to indict him well into the GOP primary season. The unseemliness of the prosecution will most likely grow if the Biden campaign or its proxies use it as a weapon against Mr. Trump, if he's nominated."

That is definitely the perspective of many Republicans, as evidenced by all the polls. Trump has maintained a commanding lead over Ron DeSantis and the others. Thus far, he's benefited politically from being indicted, as nutty as that sounds. But it's borne out by the data. In a recent CBS/YouGov poll, 86 percent of Republicans said they feel the Trump indictments and investigations are an attempt to stop his 2024 campaign. And 56 percent say they view the indictments and investigations as an attack on people like me.

It's true, Trump's fate might be determined by the election, that he could win stymie the Justice Department and or self-pardon for the federal charges. But that doesn't mean it's proper for the special counsel or the court to schedule trial with the election in mind. Where the DOJ standards warned against doing anything close in time to an election for the purpose of influencing the election, that should include the pace with which a case is prepared for trial.

Don't misunderstand me, Trump shouldn't be shown any difference in delaying the trials until after the election. But nor should he be rushed to trial different than any other defendant. And if that happens, it will likely enhance his standing in the court of public opinion. Which brings me to today's poll question. Go to smerconish.com right now and answer this question, should the timing of any Trump trial be influenced by the date of the election?

Joining me now to discuss is Ronald Sullivan Jr., Clinical Professor of Law at Harvard Law School, where he's also faculty director of the Criminal Justice Institute. Professor, thank you for being here. In a normal felony case of this magnitude, would it gets to trial before November of 2024?

RONALD SULLIVAN JR., PROFESSOR OF LAW, HARVARD LAW SCHOOL/FACULTY DIRECTOR JUSTICE INSTITUTE: I do not think so. And if you had asked me this question 24 hours ago, I would have said, there's no earthly way this case would go to trial before the election. But having seen what happened yesterday in court, I have to modify my opinion a little bit. There's probably a likelihood that this will go to trial before the election.

SMERCONISH: And what is it? Read the tea leaves or what did you hear or read in the transcript from yesterday that causes you to change your view?

SULLIVAN: Well, Judge Chutkan deploy what I'm going to call the no shenanigans rule. She said we're going to -- we're going to do this -- we're going to do this timely. We're not going to play any games, we're not going to try this case in the media, we are going forward. So, she threw down the gauntlet and said we're going to be ready.

[09:10:11]

The government turned over, I believe, 11 million pages of discovery, which is sort of unheard of at this early stage. So, I suspect Judge Chutkan in is going to say, if everything has been turned over, and if the defense has had time, sufficient to prepare, then we're going to trial.

SMERCONISH: You heard my view, my view being don't cut them any slack, but don't treat them differently than you would treat a different defendant. I know that a critic, and I'm not sure if you are a critic on this, you'll tell me so, I know a critic would say, hey, the American people have a right to know before they go in and close the curtain and cast their ballots. What do you think on the fundamental issue that I'm raising?

SULLIVAN: Well, I think you are right. So, what we have are two principles that are intention. One is a bedrock principle of criminal justice administration that no person is above the law. That, frankly, is intention with this notion that the Justice Department should not get involved in politics, should not muck around close to an election. And those two are at loggerheads with each other, one has to give way to the other.

And the resolution of this tension, at least according to Judge Chutkan, is the administration of criminal justice, no person is above the law. So, I think you're right that he should be treated like every other person, every other accused in court. What's important to remember, though, is that every other accused, including the president has a sixth amendment right to an effective assistance of counsel. So if his lawyers say, hey, this is too quick, I cannot be effective, I cannot prepare, then there's going to be a problem in terms of whether this thing can move at the pace the judge wants it to move.

SMERCONISH: And finally, Judge Chutkan was a law school classmate of mine at Penn Law, and yet I think you know her far better than I do. Give us some insight you who know her well of what to expect?

SULLIVAN: Well, she's smart. She is or was an expert trial lawyer. So when you have a judge who was an expert trial lawyer, you're not going to be able to pull the wool over her eyes. She can say, no, I've been there, I have done that.

You know, I know for a fact that Judge Chutkan, for example, as you know, closed in one case, walk down the hall, this is when she was a public defender, and opened in another case. So, she's not going to be moved by certain claims that, oh, I don't have time to prepare for this or prepare for that. She has a keen sense of what a sophisticated litigation entails after the Public Defender Service. She was at a major law firm and did all sorts of commercial and criminal litigation. So, she's going to know what it takes to be prepared in a timely manner in this case.

She's a no nonsense. You're not going to be able to pull the wool over our eyes. But most importantly, and particularly as a former public defender, she's going to be fair. She realizes that the government has the burden to prove this case beyond a reasonable doubt. And she's going to ensure that Mr. Trump, like every other defendant before her, gets a fair trial.

SMERCONISH: Professor, here's a social media reaction hangout. Hangout, I'll read it at loud, we can respond together. Catherine (ph), what do we have? It's funny, but up until now, the MAGA supporters were complaining that this process was dragging. But now it's "why now?" There will never be an ideal date for Trump. Let's go ASAP.

I guess to that I would add, Professor, as I pointed out, like the next 15 months, there's no clean opportunity where there won't be conflict. It doesn't have an easy resolution. Quick final word from you.

SULLIVAN: No easy resolution values our intention with each other. What's going to happen according to Judge Chutkan is that the criminal -- administration of justice is going to take precedent. So they're going to move this case notwithstanding what else is going on on the calendar. And then we'll see what happens.

SMERCONISH: Professor, thank you for your expertise. Appreciate it.

SULLIVAN: Many thanks.

SMERCONISH: Remember, I want you to hit up my website right now. Go to smerconish.com, answer this week's poll question, Should the timing of any Trump trial be influenced by the date of the election? Register for the daily newsletter when you're there, it's free and worthy.

Up next, on Friday, Merrick Garland gave special counsel status to the U.S. attorney investigating Hunter Biden. Perhaps, this will finally get us closer to the bottom of that case, but it certainly makes 2024 even more complicated. In the on deck circle, I will speak to IRS whistleblower Gary Shapley about the new development.

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[09:18:54]

SMERCONISH: Friday, Attorney General Merrick Garland announced that he was giving special counsel status to the U.S. attorney investigating Hunter Biden saying it was in the public interest due to the, quote, "extraordinary circumstances relating to this matter." The prosecutor David Weiss had asked Garland for the new authority after plea talks to resolve tax and gun charges fell apart with a trial now more likely. Garland's decision gives Weiss more powers than a typical U.S. attorney and gives him further independence from the DOJ. It also puts America in uncharted territory with three DOJ special counsels currently investigating the sitting president, his son and the previous president.

A senior DOJ official told CNN that the White House and Hunter Biden's legal team were not informed beforehand of the decision. Calls for a special counsel have intensified in recent months with leading Republicans claiming Hunter Biden got a sweetheart deal. And two IRS whistleblowers alleging that Weiss and the Justice Department gave him preferential treatment in the plea deal. One of them, Gary Shapley, will join me in a moment.

Democratic Senator Dick Durbin, Majority Whip and Chair of the Senate Judiciary Committee released a statement praising the move saying, "Attorney General Garland has committed to avoiding even the appearance of politicization at the Justice Department."

[09:20:11]

But House Judiciary Chair Republican Jim Jordan, who'd asked Weiss to testify before his committee about the Hunter Biden probe, released this statement through a spokesperson, "David Weiss can't be trusted. And this is just a new way to whitewash the Biden family's corruption. Weiss has already signed off on a sweetheart plea deal that was so awful and unfair that a federal judge rejected it."

Jordan's view was echoed by House Speaker Kevin McCarthy and Chuck Grassley and Tim Scott, who said that Weiss isn't the right person for the job. Hunter Biden's Attorney Chris Clark said in a statement the "U.S. attorney has diligently been investigating my client for five years and he had proposed a resolution which we fully intend to pursue in court. We are confident when all of these maneuverings are at an end my client will have resolution and we'll be moving on with his life successfully."

Joining me now is IRS whistleblower Gary Shapley. He worked for the IRS for 14 years as a supervisory agent, and was the first IRS whistleblower to come forward in the Hunter Biden investigation. He testified before a House committee just last month.

Gary, thank you so much for being here. You testified that at this meeting on October 7, 2022, David Weiss said he wasn't the deciding authority and that's contrary to what he'd been saying in letters to Congress. So, does this move, this recent move confirm or refute your testimony?

GARY SHAPLEY, IRS WHISTLEBLOWER: Thank you, Michael, for having me. So, yesterday's announcement was an admission by Attorney General Garland that they have not been truthful, Department Justice hasn't been truth truthful with the American people. And it goes right to what you just said is that he did not have the authority to make the decisions as he said in that October 7, 2022 meeting.

SMERCONISH: So, in the letters he makes clear, I have all of them in front of me, the three that he sent over to Congress, he makes clear that he is the deciding authority. He also said that he had not asked for designation of special counsel. I mean, in this instance, what do we know? He asked for it apparently on Tuesday, and it was promptly given. What doesn't sound right about that timeline to you?

SHAPLEY: Well, I know that October 7, 2022. He told that group and that room is corroborated by another individual that was in that room that he requested special counsel authority after going to D.C. President Biden, U.S. attorney -- appointed U.S. attorney to have charges for 2014, 2015 years there. And that he was denied that authority from Maine DOJ, and he was told to follow the process.

Now you discuss these letters on June 7 of this year and June 30. The June 7 letter says, I have full authority, that was before Special Agent Ziegler and I testified in front of the House Ways and Means Committee. And then, the June 30 letters released after our testimony was voted out by that committee and made public. And it was clear that United States Attorney Weiss changed his story because he says I have full authority to charge. The June 30 letter, he echoes that saying a full authority charge.

And it's a very important paragraph then he has right then where he says -- after that he says, I don't have the authority charge outside of Delaware, I would have to partner with a U.S. attorney where a venue exists. And this announcement yesterday, it's absolute unquestionable vindication of Special Agent Ziegler and I coming forward, because this is the crux of the issue that we brought forward to House Ways and Means Committee and the House Oversight Committee.

SMERCONISH: It -- in that June 30 letter, you're right, he makes reference to his charging authority being geographically limited to my home district. And you and I are quickly in the weeds on this. So just sort of step back and tell me big picture. What does it all mean? What's going on here, Gary?

SHAPLEY: So, a subject has to be charged where the crimes are committed is called venue. And in this case, the venue was determined as early as June of 2021, that for the 2014 2015 charges, it was the venue -- most appropriate venue was the District of Columbia. And then for the next years 16, 17, 18, 19, the venue had to be in central district, California. Both of those districts are ran by President Biden appointed U.S. attorneys. And he said on multiple occasions, Attorney Weiss said on multiple occasions, and the prosecutors are well aware of it, it was an ongoing conversation with investigators, the entire investigation toward charging in March of 2022 that they had to go to D.C., then they had to go to California because David Weiss still have the authority.

This announcement runs afoul of everything that DOJ has told the American people about who has the authority or runs afoul of Attorney General Garland's testimony in front of Congress on April 26 last year and March 1 of this year. And these letters just simply are not accurate based on the actions taken. If you recall, Attorney General Garland said --

[09:25:05]

SMERCONISH: Do you think --

SHAPLEY: -- said that he actually -- David Weiss had more authority than a special counsel had. So now, he appoints him special counsel, does he now have less authority than he had previously? It just doesn't match up.

SMERCONISH: Quick answer. Does the President himself now face more legal jeopardy in your view?

SHAPLEY: I can't answer that other than that there were investigative steps that clearly indicated the Hunter Biden's father, President Biden, had some type of involvement, and we just weren't allowed to follow those leads.

SMERCONISH: Were you not allowed to follow those leads because you think DOJ and the IRS wanted to shut you down as a protective measure? You know, to protect the president? Or because people are just afraid to rattle the cage? Which of them? Is there a more benign explanation?

SHAPLEY: Look, I can't get into their motivations, because I just simply don't know what their motivation was. But I do know that any typical investigation when you have text messages, when you have discussions of 10 percent going to family members have a subject at any tax investigation, any financial investigation, you have to go there. And any other investigation, we would have went there.

SMERCONISH: Social media reaction, stick around, Gary. Put it up, Catherine, let me see if I want to rely on Gary for this. No one cares about Hunter says, Kelly Ann. The real issue is the Joe Biden connection and the possibility of national security being compromised. Let's get to the truth. Quick answer for you, Gary, you would say what to that viewer?

SHAPLEY: I'm here for the American people. I'm risking my life and my career for the American people. And what's right is right. And if everyone does what's right every single time, then, you know, then America is going to be a great country for a long time to come. So, I can't comment on that.

SMERCONISH: I'm with you insofar. I'm not rooting for any outcome in this case, other than to get to the truth. Thank you, Gary.

SHAPLEY: Thank you so much, Michael for it.

SMERCONISH: Please go to the website smerconish.com, cast a ballot on this week's poll question, Should the timing of any Trump trial be influenced by the date of the election?

Still to come, starting in the 1960s with the draft and busing, the elites began to enjoy a different America than the middle class and working classes. Although, many make noise about promoting a merit based society, are they actually just propagating their own power? And Mike Pence tried to promote how he's a regular guy by pumping gas didn't go so well, but he's just the latest in a long line of candidates' bungled attempts to look like ordinary folk. And as you'll see, it's the backfires we remember most.

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[10:32:02]

SMERCONISH: In America's culture wars, are seemingly progressive educated elites actually the bad guys? That's the provocative question recently raised by "New York Times" opinion columnist David Brooks that sparked a heated online debate.

He wrote -- quote -- "I ask you to try on a vantage point in which we anti-Trumpers are not the eternal good guys. In fact, we're the bad guys."

The elites, argues Brooks, while talking a good game about supporting the marginalized actually perpetuate a system that serves themselves. He traces the phenomenon to the 1960s when high school graduates were forced to go to fight in Vietnam while the offspring of the educated class got college deferments. And then in the 1970s when to fix racial imbalance busing was imposed on working class communities but not the upscale ones.

Brooks writes, "The ideal that we're all in this together was replaced with the reality that the educated class lives in a world up here and everybody else is forced into a world down there. Highly educated parents go to elite schools, marry each other, work at high-paying professional jobs and pour enormous resources into our children who get into the same elite schools, marry each other and pass their exclusive class privileges down from generation to generation."

He cited the ground breaking work of my next guest in his book "The Meritocracy Trap: How America's Foundational Myth Feeds Inequality, Dismantles the Middle Class, and Devours the Elite." Daniel Markovits joins me now. He's a professor of law at the Yale Law School and the founding director of the Center for Study of Private Law. Professor, what does merit mean as we are using it, and what's wrong with it?

DANIEL MARKOVITS, AUTHOR, "THE MERITOCRACY TRAP"/PROFESSOR OF LAW, YALE LAW SCHOOL: Well, first off, thanks for having me on. It's a pleasure to be here.

So, what merit means is that people get ahead based on their accomplishments rather than on say their race or their gender or their religion or their parent's breeding. The problem is that accomplishments depend very, very heavily on the investment that parents make in their kids' education. And the elite today have so much more money than everyone else and have an infinite taste for investing in their kid's education.

And so, they spend vastly more sums than anyone else can afford and then they produce kids who because education works accomplish more than anybody else. And that means that while they are very hard working, their advantages are undeserved and unfair.

SMERCONISH: Shy of socialism, how do you fix it?

MARKOVITS: Well, I think you fix it in two ways. The first thing you do is that what we have seen over the past 40 or 50 years in America is that elite education has become more and more exclusive and more and more intensively funded. So, the ivy league today, for example, spends about twice as much per student per year as it did in 2000.

Now, these colleges are full of kids of rich parents. A lot of these colleges have more kids from families in the one percent than an entire bottom half.

[10:35:03]

So, the first thing to do is to realize that colleges that spend a lot of money on rich kids are not charities and they shouldn't be taxed as charities. And the government should say that if these colleges and private schools, by the way, want to keep their tax exemptions, they have to massively increase their enrollments and take the new kids from the bottom two-thirds of the income distribution. So, one thing to do is to make education more democratic.

SMERCONISH: David Brooks writes this, "Like all elites, we use language and mores as tools to recognize one another and exclude others. Using words like problematic, cisgender, Latinx and intersectional is a sure sign that you've got cultural capital coming out of your ears. Meanwhile, members of the less-educated classes have to walk on eggshells because they never know when we've changed the usage rules so that something that was sayable five years ago now gets you fired."

Professor Markovits, do you come at this from a political or ideological perspective?

MARKOVITS: Well, like everybody, I have my own ideas and ideals. And I'm pretty far left, to be honest with you. But the scholarly work I do is not designed to promote my own political views. Instead, what I do in my book and what I do in my other scholarship is I identify facts about who pays how much for education, which jobs pay how much, who gets the jobs, and then I try to lay out a description of what has happened in the country over the past 50 years.

And people will decide what to do based on those facts, depending on their own ideas, not mine. And I think that's as it should be.

SMERCONISH: So, by your analysis, I feel like I'm a bad parent. Because I am doing or have strived to do exactly that, which you're criticizing. My wife and I work seven days a week to be able to afford a great education for our four. And, yes, they have gone to good schools. So, like what have I done wrong and what am I supposed to be doing as a parent?

MARKOVITS: Right. So, you're not a bad parent. You're a good parent. I mean, the feature of the system we built is that when the elite does everything it's supposed to do, when it teaches its kids to work hard, to get good at things, to study, to try, it also gives them enormous undeserved and unfair advantage.

And whether people should feel guilty for giving their children virtues but unfair advantage, that's between them and their gods. But the point of the analysis is that this is a kind of structural inequality. And whether we feel guilty or not, or whether you feel guilty or not, what people should do is try to change the system. Try to democratize education, try to democratize work, try to support mid skill -- middle class jobs, policies that will produce those jobs, rather than further policies that concentrate privilege and advantage in the elite.

SMERCONISH: Here's a social media reaction for yours truly and Professor Markovits. Put it up there, Catherine.

Educated folk aren't bad guys, says Ickle Old Lady. But they're no better than blue collar folks. It's when college educated folk act like they are too good to associate with blue collar folk that they become bad guys.

And I would add to that, professor, that ties into, you know, Putnam with "Bowling Alone," and Bishop with "The Big Sort," and Murray with "Coming Apart," and Markovits in "The Meritocracy Trap." I mean, the separation that it breeds is really of concern to me. Quick final word from you?

MARKOVITS: True. The separation is huge. The rich today they grow up in different neighborhoods. They married each other. They shop in different stores. They watch different TV. They read different books. And in the long run, that is going to break down the ties of mutual understanding and solidarity, which a functioning democracy has.

SMERCONISH: Thank you so much for being here. I appreciate it. The book is great.

I want to remind everybody answer this week's poll question at Smerconish.com where I'm asking, should the timing of any Trump trial be influenced by the date of the election? When you're there, register for the daily newsletter.

Still to come, did you notice anything odd about the latest Mike Pence ad? Up ahead, I'll break down an exhaustive list of campaign stunts gone wrong.

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[10:43:19]

SMERCONISH: So, who do you want to have a beer with? Right or wrong, it's a litmus test that arises every four years in the context of presidential elections. I'm not defending that lens as a way of picking candidates, but rather just acknowledging the importance of authenticity. And if you fail that test, your campaign could be doomed.

We've just had our first example of the 2024 cycle. Former Vice President Mike Pence caused a brouhaha while pumping gas in a campaign commercial.

(BEGIN VIDEO CLIP)

MIKE PENCE, FORMER VICE PRESIDENT OF THE UNITED STATES: Remember, $2.00 a gallon gas? I do. And then Joe Biden became president of the United States and launched his war on energy.

(END VIDEO CLIP)

SMERCONISH: Online, many Zaprudered the tape and there were issues. For starters, who gets to pump without paying or selecting a fuel type or even squeezing the nozzle? And you can hear the gasoline dispenser beeping as he's talking clearly signaling something is not right.

Take away, it's been a while since Pence pumped his own gas. A failure, you would say, of the beer test. The good news is he has got a lot of company.

Last year, in the most highly contested Senate race of the midterms, Dr. Mehmet Oz faced tough criticism for being labeled as carpetbagger. Meaning a candidate running for office in an area he or she has no local or personal tie to. Let's go to the tape.

(BEGIN VIDEO CLIP)

DR. MEHMET OZ (R-PA), SENATE NOMINEE: I thought I'd do some grocery shopping. I'm at Wegners. My wife wants some vegetables for crudites.

(END VIDEO CLIP)

SMERCONISH: All right. Hold on. It's either Wegman's or it's Kroger's. But it surely isn't Wegners. John Fetterman's campaign raised $500,000 from the political gaffe when he responded as follows.

[10:45:01]

(BEGIN VIDEO CLIP)

LT. GOV. JOHN FETTERMAN (D-PA): In PA, we call this a veggie tray.

(END VIDEO CLIP)

SMERCONISH: In 2019, Democratic Massachusetts senator Elizabeth Warren announced her plans to run for president and took a moment to pause her announcement on Instagram live for this.

(BEGIN VIDEO CLIP)

SEN. ELIZABETH WARREN (D-MA): Hold on a second. I'm going to get me a beer.

(END VIDEO CLIP)

SMERCONISH: Yes, sorry, senator, if you have to announce that you're getting a beer, we're not interested in having one with you. Just two weeks before, the New York Democratic primary in 2016, former first lady and then presidential candidate Hillary Clinton wanted to prove that she takes the subway just like any other New Yorker. Unfortunately, she needed five tries to properly swipe a MetroCard.

And what the fork is happening here? Donald Trump in 2011 using utensils to eat a slice along with former Alaska governor Sarah Palin in Times Square. And then there was John McCain, war hero and land owner. After successfully clinching the 2008 GOP presidential nomination the Arizona resident stumbled to give a straight answer to a seemingly simple question. How many houses do you own?

(BEGIN AUDIO CLIP)

JOHN MCCAIN (R), FORMER PRESIDENTIAL CANDIDATE: I think -- I'll have any staff get to you.

(END AUDIO CLIP)

SMERCONISH: The correct answer apparently was eight. But an honest answer from the Arizona senator probably wouldn't have sat well with voters since more than 800,000 families lost their homes that year due to the recession.

Thankfully for the McCain camp, then senator Barack Obama had a few not so relatable moments of his own while visiting a bowling alley in Altoona, Pennsylvania. The first term senator played with Senator Bob Casey. He scored only a 37 out of 300. Obama then admitted that he hadn't bowled since he was 16.

The highly tailored dad pants and wide bowling stances probably didn't help his case. And then when vying for votes in Iowa, Obama tried to connect with farmers by complaining how expensive arugula is at the local Whole Foods. Little did he know that at the time the closest was in Omaha, Nebraska, where all politics are local.

This might be my favorite unrelatable moment. Anybody running for president needs to come to Philadelphia and eat a cheesesteak, we expect that. And we want to make sure that you know how to order. A simple answer, Whiz wit.

But when then Democratic presidential candidate John Kerry ordered a Philly cheesesteak with Swiss cheese at the legendary Pat's the war hero went off menu. And the only thing worse is that he was observed eating daintily while protecting an elongated fingernail that apparently, he used to play classical guitar. Now, that's not passing the beer test.

Now, here's a tough one. You remember when before accepting the party's presidential nomination in 2000 Vice President Al Gore planted a three-second-long kiss on his then wife Tipper, which many viewers at home felt was a bit too long and uncomfortable. It seemed like three minutes but "The New York Times" actually did a stopwatch and they said it's three seconds.

Still, did that make him more or less relatable? The jury is kind of still out on that one. And, of course, the two parted ways in 2010.

Who can forget what seemed like the most expensive haircut in history? Two of LAX's runways shut down for nearly an hour causing some delays for incoming flights just so President Clinton's Beverly Hills stylist Cristophe would come aboard and give him a trim before heading back to Washington.

Of course, the incumbent he unseated just a year prior wasn't any better during his bid for reelection. President George H.W. Bush appeared amazed when scanning items at a mock-up checkout line during a National Grocers Association convention in Florida. His bewildered reaction to the scanner made him appear out of touch and he eventually lost the presidency. Not saying it was because of that, but who knows.

But all of this pales in comparison to the gold standard of unrelatability. Yes. Sorry, governor, but it's you, Michael Dukakis, wearing that oversized helmet while riding at a tank at a campaign event in the 1988 presidential cycle. Criticized for being weak on national defense and little experience in the national security arena, the Democratic candidate had a lot to prove, but this photo op unfortunately was a misfire.

By the way, in 2013, 25 years after the tank ride, Josh King, himself a former Clinton advance man, went down a rabbit hole for "Politico" and like tried to piece together the genesis of the tank ride. The short version, much of his attention focused on a young Dukakis staffer named Matt Bennett, who organized the event and was tasked with making Dukakis look, appear presidential. After reporters were done laughing at the candidate, one of Bennett's colleagues turned to him and reportedly said, nice event, Matt. It may have just cost us the election. But besides that, it was great. So, Mike Pence, former vice president, you got a lot of company.

[10:50:01]

And maybe you should call one of these folks and have a beer. Still to come, more of your best and worst social media comments and the final result of this week's poll question from Smerconish.com. Go vote. Should the timing of any Trump trial be influenced by the date of the election?

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SMERCONISH: So, there's the result of this week's poll question at Smerconish.com. Should the timing of any Trump trial be influenced by the date of the election?

Wow. I love it. I'm in the majority for once. Seventy-eight percent of us say no. Yes, don't cut him any breaks. Don't push it off. But don't speed up the clock, either.

[10:55:01]

May I show you something else? Yesterday's poll result, put this on the screen. I want you to see this. Which will drive more people to the polls in 2024? The reason I'm showing it to you, I've never had a poll result so close, 50.48 percent said abortion, and 49.52 percent said Trump. Obviously, abortion because of what just happened in Ohio. Good lesson for us to be thinking about.

Social media, I think I've got time for one. What do we have that came in?

You are such a phony. Faking like you're just asking questions, while pushing that same far right dribble.

Really? What dribble?

You're not fooling anybody. You're not playing down the middle. You have an agenda.

Hey, I bite. I guess I'm biting in responding to you. Like, I don't mind the criticism. I welcome it. I tell Catherine, don't put up any praise, because nobody other than my mother wants to read it.

But next time, bring something substantive. Next time, call me out and say you said this. But instead, it was all hyperbole. And there is like nothing there for me to react to. See you.

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