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Smerconish

Will Trump Trials Take Place Before The Election?; Lessig: SCOTUS "Must Unanimously Strike Down Trump's Ballot Removal"; Daniels: Major Economic And Social Crisis Seems "Inevitable"; Trump Holds Overwhelming Lead Over DeSantis, Haley in Iowa. Aired 9-10a ET

Aired January 06, 2024 - 09:00   ET

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

[09:00:00]

VICTOR BLACKWELL, CNN ANCHOR: Don't you think I should see? Tell me. I'm at Victor Blackwell on the socials. And thank you so much for joining me today. I will see you back here next Saturday at 08:00 a.m. Eastern. Smerconish is up next.

MICHAEL SMERCONISH, CNN ANCHOR: Which will Trump face first, the jury of his peers or the electorate? I'm Michael Smerconish in Philadelphia. The briefs have been submitted, and on Tuesday lawyers for former President Donald Trump and those of the DOJ reporting to the Special Counsel Jack Smith will square off in front of a three judge panel of the Court of Appeals for the D.C. Circuit at issue whether Trump has immunity for conduct he undertook as president and or cannot otherwise face prosecution because it would represent double jeopardy. That's the legal issue. But what's most important here is the timing.

Trial Court Judge Tanya Chutkan, has determined that she can't move forward until this issue is resolved. She entered an order on December 13 saying that Trump's appeal automatically stays any further proceedings that would otherwise move the case toward trial. But that stay could be lifted after the outcome of Tuesday's argument. For sure, the losing side is going to appeal to the Supreme Court after perhaps first asking for the full court of the Appellate Court to hear the matter on bonk. The losing party in the Court of Appeals has 90 days to ask for certiorari or Supreme Court review.

As I've detailed here before, Smith is eager to get Trump tried before the election. Trump, on the other hand, wants to run out the clock. He hopes to win the presidency and use his power to end his own prosecution. So, how likely is it that Trump is tried before the election? If in the unlikely scenario, he wins his immunity or double jeopardy argument this prosecution will end, obviously Jack Smith would fight that outcome.

But what if Trump loses in the court of appeals and that decision is promptly announced? It means he can wait three months, think the month of May, before even asking the Supreme Court to hear his appeal. By then the Republican nomination fight will likely be long over and it would conceivably take the Supreme Court weeks if not months to resolve the matter. Only then could the case be returned to Judge Chutkan for trial, making it highly unlikely that Trump will be tried before Election Day. But it's all rather uncertain.

And now there's a relatively new wrinkle. The Court of Appeals accepted an amicus or friend of the court brief from a group called American Oversight. Lawyers from the white-shoe firm of Arnold and Porter argue that the Court of Appeals lacks jurisdiction at this time to hear the appeal. And they cite a 1989 Supreme Court case in which Justice Scalia wrote for a unanimous court. If this argument sways the panel next week, it could immediately return the case to trial before Judge Chutkan and Trump would face a jury of his peers before he faces the electorate.

Joining me now is Elie Honig, CNN Senior Legal Analyst, former federal prosecutor, author most recently of "Untouchable, How Powerful People Get Away With It."

Elie, nice to see you again. Big picture, how many trials might Trump realistically face before the election?

ELIE HONIG, CNN SENIOR LEGAL ANALYST: Michael, that is the big question. And I'm going to give you a definitive ironclad mathematically precise answer right now. Probably one, maybe two, could be zero, but that chance is low but increasing, definitely not three or four. And let me break that down quickly. We can write off the Fulton County DA's case. That one is not going to be tried before the election.

The DA has asked for an August 20224 trial date. Conceding that would go into 2025, not going to happen. Now, up until recently, it looked like the one that was going to go first was the case you were just talking about, Jack Smith's D.C. federal election subversion case scheduled for March 4 of this year, 60 or 55 days from now, but that one has major questions about timing now. Then you have Manhattan DA's hush money case scheduled for late March. And then you have Jack Smith's other case, the Mar-a-Lago classified documents case scheduled for May.

So, I don't know if Domino's or chess or musical chairs is the best analogy here, but it's got elements of all three.

SMERCONISH: So you heard my analysis at the outset. I think that Trump has a long shot at best in asserting immunity or double jeopardy. That's why I'm focused on how long is this going to take? And when does judge Chutkan get to put it back on a trial track? What are your thoughts on that?

HONIG: I agree with you. First of all, I think Donald Trump will lose his immunity argument. But let's play out the timing here now, the argument in the Court of Appeals is set for Tuesday, this coming Tuesday, January 9, the Court of Appeals in D.C. has made pretty clear they're going to rule quickly. So let's assume they rule by February 1. If that happens and they rule against Trump, he then has 45 days, ordinarily it's 15 days but because the United States, the government is a party, he then has 45 days to ask for what we call on bonk review, meaning the entire Court of Appeals.

[09:05:15] That brings us into mid-March or so. Let's say it takes them a couple of weeks, whether they do it or don't. Now we're into April. And from that point, Michael, Donald Trump as the losing party, let's assume, has 90 days to ask for certiorari, to ask the Supreme Court to take the case. So that takes us into May, June, now we're into July. And then if the Supreme Court takes the case, forget it, that's going to take a couple of months, that puts us way too late into the summer.

Even if they don't, though, even if it goes back in July, you can't just start the trial the next day. This case was stayed, was put on pause with about four months to go before trial. So Trump's going to say, I'm entitled to at least a few months from when it comes back. So, there are real questions now about the timing.

SMERCONISH: OK, you and I are far into the weeds, but I think it's a good thing. I think this is really important. What must Judge Chutkan do during that timetable? The outline that you've just offered, is she just to sit and stay to continue? Or if Trump is unsuccessful, initially in front of the three court panel or in front of on bonk, can she now get back to her trial calendar?

HONIG: So this is a really important nuance, Jack Smith has asked the court of appeals to do what we call issue the mandate five days after they rule on this argument that's coming up. And again, remember, we expect a ruling late January or so. If the Court of Appeals does that, if they issue the mandate, that means the case goes back down to Judge Chutkan, which theoretically would free her up to begin carrying on with pretrial proceedings again. The however is, first of all, will the Court of Appeals, in fact, issue a mandate back down to Judge Chutkan.

And second of all, if they do Donald Trump's going to fight that. He's going to say no, no, no, I get a chance to go up to the Supreme Court. Everything should remain stayed, everything should remain on hold, pending the outcome of my final appeal potentially up to the Supreme Court. So, that's another really make or break decision point.

SMERCONISH: OK. OK. Another question. Maybe the final question. At what point do we get so close to the election, the DOJ says whether it's 60 days or 90 days, it's never been clear to me. Well, we do have our own internal guideline. And we don't think this case ought to be tried so close to the general election.

HONIG: Yes, so DOJ has a long-standing policy and practice of not taking over investigative steps, not announcing an indictment, not doing a search warrant. We then depending who you ask 60 or 90 days of the election. I think once you get into the late summer, I think DOJ and the courts will say, this is just too close. Let's say for example, you tried to start a trial of Donald Trump in August, are you really going to have him on trial physically removed from the campaign trail throughout the entire general election campaign, September, October, potentially on and through Election Day? So I see a sort of drop dead date of July, mid to late July.

If they don't start by then, I think everyone involved is going to agree it has to go till after the election. SMERCONISH: Elie, final 30 seconds, hearing your analysis, which I greatly respect, the moon and stars would have to line up for Jack Smith to get Donald Trump tried before the election. That's my takeaway. Is that yours?

HONIG: I think he's going to need some help. I think he's going to need some help, either from the Court of Appeals or the Supreme Court and or Judge Chutkan. I think there's a good chance Jack Smith tries one of his cases. But let's keep an eye though, Michael, on the Manhattan DA's case, the forgotten hush money case, if and when Jack Smith's case on federal elections version moves out, there's going to be a gap in the calendar, the Manhattan DA has made clear he said on the record, I'm ready to go late March. Now that may not be ideal for those hoping to hang a meaningful conviction on Donald Trump, but that one may actually be the first one tried as it plays out now.

SMERCONISH: That would be -- Donald Trump is watching, and he hopes you're right that when all is said and done --

HONIG: Yes.

SMERCONISH: --a seven-year-old case based on a porn payoff is the only thing for which he's tried before the election. If I were Trump's lawyers, I wouldn't even oppose it. I'd say sure. Put us on trial for that.

Elie, thank you as always. I appreciate it.

HONIG: Thanks, Michael. All right.

SMERCONISH: Now for more on Trump and SCOTUS, I want to turn to one of Elie Honig's Harvard Law School professors, that would be Lawrence Lessig. Friday, the Supreme Court announced that it will review the Colorado Supreme Court's unprecedented decision removing Trump from that state's ballot with oral argument scheduled for February 8. Here's what Professor Lessig recently wrote in Slate about Trump and the Colorado challenge, quote, "Donald Trump is an astoundingly dangerous candidate for president. He's a pathological liar, with clear authoritarian instincts. Were he elected to a second term, the damage he would do to the institutions of our republic is profound.

[09:10:01]

His reelection would be worse than any political event in the history of America, save the decision of South Carolina to launch the Civil War." So, it might surprise you that his piece was one of several cited by Trump's lawyers in their petition to the Supreme Court about the Colorado case. And that's because despite everything I just quoted for you, the title of Professor Lessig's piece is this, "The Supreme Court Must Unanimously Strike Down Trump's Ballot Removal."

Lawrence Lessig is Professor of Law and Leadership at Harvard Law School. Professor, thank you for being here. You think that Trump's election would be catastrophic, but that so too, would be his removal from the ballot? How come? LAWRENCE LESSIG, PROFFESOR OF LAW & LEADERSHIP, HARVARD LAW SCHOOL: Well, basically, because the Constitution does not give a state judge or a state court, the power to remove a federal officer, absent some federal legislation Congress has enacted to describe how that is done. And that conclusion, I think, is pretty clear. And this case should be immediately reversed so that we get on to the political question of whether this man ought to be elected president.

SMERCONISH: You often hear people say, well, just apply the law. I'm going to put on the screen section three of the 14th Amendment. You know it well. I'm not sure if you'll be able to read along with me. But you know, it says -- it begins, "No person shall be a senator or representative in Congress, or elector of president or vice president, or hold any office," et cetera, et cetera, et cetera.

I've highlighted aspects of this. And on one hand, Professor, you say, well, it refers to Senator or Representative or even elector, but it doesn't say President. On the other hand, it does say hold any office, and he has held an office. It does say taken an oath, and he's taken an oath. It does say officer, is the president not an officer? But it's ambiguous at best, right?

LESSIG: Yes, I think it's ambiguous at best. I'm willing to concede, though, that Congress would have the power under section 5 of the amendment to pass a law that says here's the procedure by which a president or senator or representative could be excluded from the ballot based on the claim that they've engaged in insurrection or rebellion. But the point is that the Supreme Court in section 2 has made quite clear that it's not going to interpret section 2 without congressional authorization through some statute. And I think the same reasoning applies to section 3, because it's not appropriate for the court to make up the rules that it's going to apply to determine whether insurrection has been committed, how exactly you prove such a fact. And so therefore I think that the question is, whether the Constitution authorizes the exclusion.

The question is whether it authorizes the exclusion by a state court, without any statute from Congress that says this is how you go through the procedure to exclude someone.

SMERCONISH: Professor Lessig, you know that some Trump supporters say this is all undemocratic. The idea that a state -- secretary of state would make a decision to remove him from the ballot. And then you get those like Judge Michael Luttig, who say, wait a minute, what could be more democratic than enforcing the Constitution of the United States? How do you see that issue?

LESSIG: So, I think Michael Luttig is one of the greatest judges we've had, and I have enormous respect for him. But the question is what the Constitution permits a judge to do, absent congressional action. Fourteenth Amendments Section 5 says it's Congress that shall enforce the 14th Amendment through appropriate legislation. And what we know is that means in some cases, we need Congress to pass a law before judges can step in and enforce the provisions of the amendment. So again, I'm happy to say with Judge Luttig, that there could be a law that says, here's how you exclude a president. But I don't think without a law, a judge, especially a state court judge, can exclude him. And never before have we seen state court judges excluding even state officers without some authorizing legislation from the state. So this is a principle about limiting the scope of judicial power. It's not a principle about limiting the reach of the Constitution.

SMERCONISH: You argued initially in Slate, and now you've published for Medium, I'm going to put up on the screen a part of what you just published. Can we do that? You said, "But the decision to remove Trump would have none of these characteristics. There is no clear line for applying insurrection or rebellion. There is no clear statement that it applies to the president, there is no popular long-standing understanding confirming its application, there is no clear procedure for determining the facts, if Colorado decides he engaged in insurrection, but Florida decides he did not, is the court then engage in fact finding of its own?"

And what you've most articulated is a desire that this be a nine to zero decision, right? Like even if they take the position that you don't think is correct, you don't want to see a split. Explain that.

[09:15:10]

LESSIG: Yes, I'm deeply concerned about the consequences of this decision for the Supreme Court. And many people say, forget the Supreme Court, and I get that. But as a law professor, it's pretty important to me that the Supreme Court sustain its authority as a critical element of our government, and that it acts in ways that are not perceived to be political. So I would disagree with the decision to remove Donald Trump. But if they do that, they should do it unanimously.

So people don't think it's a partisan judgment by just judges that don't like Donald Trump. And the same thing the other way around, if they decide to remove him, I hope that -- I mean, keep him on the ballot, I hope that all nine justices would say the same thing so that we can move beyond the question of whether this is a judgment by Republican justices or conservative justices to a judgment about whether this is a judgment by justices who are applying the law, including the law about limiting their own authority, absent congressional authorization through a statute.

SMERCONISH: You have inspired today's poll question at smerconish.com. I'm asking, where is Donald Trump more vulnerable? Via constitutional? Well, we're putting it on the screen right now.

Here's how I worded it, where is former President Donald Trump more vulnerable? In the realm of constitutional interpretation, like Lawrence Lessig is describing, or at the ballot box. You get the final word on that. Go ahead.

LESSIG: Well, I hope it's at the ballot box, because that's how our democracy needs to function. I fear that if the court kicks him off, we're going to have the next 10 years of an argument about whether judges changed our democracy by removing the leading candidate in the Republican Party.

SMERCONISH: Professor Lessig, thank you so much. Nice to have you and your former pupil here in the same segment.

LESSIG: Yes, me too. Great to see you, Michael.

SMERCONISH: What are your thoughts? Hit me up on social media? I'll read some responses throughout the course of the program. This comes from the world of X. "Michael, can you please take off your appeasing hat and start standing up for this country and our collective future?

I'm not even reading anymore. I'm just going to say this. You just heard from two brilliant minds, in Elie Honig and Lawrence Lessig analyzing what's most important as we approach now 2024. And it's not so much what's going to happen in Iowa, although I'm looking forward to J. Ann Selzer being here in a couple of minutes. And it's not so much what's going to happen in New Hampshire. It's one of -- it's what's going to happen in the courts on Tuesday in D.C. in the Court of Appeals, and then when we get to that argument in the Supreme Court relative to Colorado and Maine. So, you ought to be thanking me for presenting to you the content that allows you to follow along what's really going to determine the outcome of the 2024 election.

Up ahead, thinking back to when he was president, generally speaking, would you say that Donald Trump's policies helped or hurt you personally? And what about Biden's policies? Surprising results and how this may be playing a role in Trump's polling numbers, we have renowned Iowa pollster J. Ann Selzer coming up. Trump has a lead in Iowa. But does that mean it's a lock?

And with the intensifying political polarization, rising debt, and governmental paralysis, is America headed to an economic and societal crises? That's the warning from my next guest, Mitch Daniels, the former governor of the great state of Indiana, and President Emeritus of Purdue. And if you haven't yet signed up for my free daily smerconish.com newsletter, check that out. That's the type of exclusive content you get in this case from two time Pulitzer Prize winner Steve Breen talking about the national debt.

(COMMERCIAL BREAK)

[09:22:36]

SMERCONISH: Is a major economic and social crisis in America inevitable? That's the thesis of a recent piece in "The Washington Post" by Mitch Daniels, former governor of Indiana and President Emeritus of Purdue University. Daniels cites a variety of experts across many fields who predict that our pileup of crises think debt, fundamental disagreement, that it's all either going to lead to a revolution or reset or a turning as has happened cyclically in the past. One demographic historian compares it to upheavals in the 1760s, 1850s, 1920s that redefined America.

Mitch Daniels joins me now. He's currently a senior adviser to the Liberty Fund.

Governor, thank you for being here. We don't know our history, so we think that things that worry you can't happen again. Isn't that it?

MITCH DANIELS, PRESIDENT EMERITUS, PURDUE UNIV., FORMER GOV. OF INDIANA: That's certainly a reason that people might find this surprising. We have lived in relatively if you look all the way back through history, relatively, happy and peaceful and prosperous times a more prosperous by far than anything humanity's ever seen before. So, people aren't accustomed to the idea. But these things do happen. Just because they haven't happened recently doesn't mean that they can't, there aren't reasons to worry about them.

SMERCONISH: Which worries you more, the economic considerations or the societal slash cultural?

DANIELS: I think the economic, they're both very, very troubling, of course. But of all the forecasts that I chronicled in the piece. And I hope they're all wrong, and therefore I hope I'm wrong.

But, you know, the one that is the most obvious and certain is mathematically certain is that we're going to have a terrible crunch with the bills we have. The debts we've run up and the commitments we've made, we've passed the point where we can deal with them without some very, to use one of the author's word, bone jarring sets of events. So, that one I think, is completely unavoidable and maybe the most eminent.

SMERCONISH: So, you publish this work coinciding with, and I'm sure you put it to bed before the figures came out. But this week brought the announcement that we've passed the line of 34 trillion in national debt. It's a hard issue, though, I think for voters to wrap their heads around, you know, what is it really have to do with me? They hear it -- worried about time and time again but since Simpson-Bowles didn't pass the country, well, isn't done anything about it.

[09:25:11]

DANIELS: Right, well, 34 trillion, you know, I was stunned at 12, 14, 16 trillion, we become desensitized to -- these numbers are basically incomprehensible. You know, what people can get their head around, though, is that there's going to be a betrayal of the promises that have been made, and our safety net programs, particularly Social Security, Medicare, and so forth. We're not going to have the money to pay for them. We'll never be able at that point, to tax the nation sufficiently enough to keep all those promises. That's going to be, to me, an economic catastrophe of southern border.

But even worse than that, a sense of moment of social betrayal. And people are going to, at that point, want to know, you know, who was at the switch when we ran down that track.

SMERCONISH: Here's some of the thinking that you cited in your piece in the "Post." I put it on the screen and read it aloud, "In the fourth turning is here, published this summer, demographic historian Neil Howe arrived at a similar conclusion. His view springs from a conviction that human history follows highly predictable cycles based on the saeculum, or typical human lifespan of 80 years or so and the differing experiences of four generations within that span. The next turning he predicts, is doing about 2033. It'll resemble those in the 1760s 1850s 1920s.

How writes that produced bone-jarring crises so monumental that by their end, American society emerged wholly transformed. Why did you find that predictive?

DANIELS: I don't know if it's predictive. It's very interesting book. I think it's probably a little bit overdrawn, and maybe sort of forcing facts into a theory that he has. However, back to your first question, it's worth reading because it teaches a lot of history. And it teaches that these sorts of crises do happen. And that we may have the elements of the next one, right in front of us.

SMERCONISH: Governor, you also write that social cohesion tends to come from matters of crises like that, which worries you. I'm not convinced that's going to happen. Jeff Greenfield, the multi Emmy award winning deep thinking historian and political observer looked into this within the last year or two wrote about it, I think, for the Atlantic and said, it's really only when we're attacked, I think, December 7, think 9/11. So, we might not necessarily all saddle up together. God forbid if this happens.

DANIELS: I think that's right. We saw a temporary unification of the country after 9/11. It didn't last very long. Some of us thought that the pandemic another threat to the entire nation might bring about some degree of collective identity and collective action. Instead, people went to their political corners and made their own medical judgments sometimes that way.

So that was not very encouraging. You know, on the other hand, this -- we can see this happen. Look at Israel at a place that -- society that argues more vigorously, maybe then even ours, but they have come together at a moment of attack and a moment of national danger in a way that shows how that can happen. That's surely the last way you would want to restore a sense of national morale and, you know, in this together, attitude here. But you know, that sometimes is what it takes.

SMERCONISH: Governor, here is a social media reaction from the world of now X formerly Twitter. Put it on the screen. I'll read it to him. That's a nice and optimistic way to start the New Year says, Bill. You would tell Bill what

DANIELS: I understand, Bill. And I'll just repeat, I hope all these folks are wrong. And I hope therefore, that the conclusion I draw is wrong. You know, I have been an optimist. And a dozen years ago, I wrote a, I guess, you'd say a highly optimistic book.

Yes, we can deal with these problems we have as adults. You know, adults make choices. Adults, make ends meet. Adults prepare for the future. They don't plunder their children's future as we've been doing.

But we've learned (ph), I don't know 12 years goes have passed since that -- I wrote that, and in all honesty, I just can't make the same assertions now. Look, we've got two candidates for president who apparently are on their way to the finals, and both are sworn to make it worse. Both are saying you know that they won't touch any of the entitlement programs which is where all the money is.

[09:30:00]

You know, people sooner or later will figure out the mortal enemies of social security and Medicare and other such safety net programs are the people who say, don't change them. I won't -- I won't change them.

SMERCONISH: Right.

DANIELS: You know, when the car -- when you're a passenger and the car is heading over the canyon wall, what you don't want is somebody putting it on cruise control or stepping on the gas. You want somebody to turn the wheel. And right now, we don't have leadership that shows any indication of willingness to do that.

SMERCONISH: OK. Well, now Bill is really bummed out. Governor, thank you so much for being here. I appreciate your expertise. Thank you.

DANIELS: Apologies to Bill. Thank you for having me.

SMERCONISH: Make sure you're voting at Smerconish.com on today's poll question. Here's what I'm asking. Lawrence Lessig from Harvard, he inspired the question. Where is former President Donald Trump more vulnerable, in the realm of constitutional interpretation, think the Colorado or Maine cases, or at the ballot box?

Up ahead, all eyes are on the Hawkeye State now that the Iowa caucus is only nine days away. Wow. Plus, will Iowans overlook Nikki Haley's recent comments about the primary process?

(BEGIN VIDEO CLIP)

ERIN BURNETT, CNN ANCHOR: You said about the primary process that while Iowa goes first, New Hampshire -- quote -- "corrects" it.

NIKKI HALEY (R), PRESIDENTIAL CANDIDATE: Oh, my gosh.

(END VIDEO CLIP)

SMERCONISH: My next guest is a renowned public researcher. She conducted the latest Iowa caucus poll for the "Des Moines Register." We'll get her take on the state of the race, next.

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[09:35:12]

SMERCONISH: Will former President Donald Trump secure the GOP presidential nomination sooner than expected? The Iowa caucus is only nine days away, but rather than trade jabs with his opponents on stage during the next GOP debate hosted by CNN, the former president and current front runner will participate in a counterprogramming event in Des Moines. Who could blame him given the situation?

The latest poll out of "Des Moines Register," which was conducted by my next guest, shows Trump holding an overwhelming lead over Nikki Haley and Ron DeSantis with 51 percent of the vote among likely Republican Iowa caucus goers.

And despite winning a key endorsement from popular Iowa governor Kim Reynolds, DeSantis still sits in second position at 19 percent. That same poll also finds 73 percent of likely Republican caucus goers believe that Trump can beat Biden regardless of his legal challenges, which is up from 65 percent back in October.

On Thursday, Governor DeSantis was quick to dismiss his poor polling numbers in the Hawkeye State.

(BEGIN AUDIO CLIP)

GOV. RON DESANTIS (R), PRESIDENTIAL CANDIDATE: Those polls have never predicted the caucus because it's hard to determine who is actually going to show up. And so that's why I don't think we put any stock in that. The people that just swoop in and do a rally here or there, people that just spend gobs of money on television, that typically doesn't work.

(END AUDIO CLIP)

SMERCONISH: If Trump were to win the Iowa caucus, is it game over for DeSantis and Haley? Joining me now is renowned Iowa pollster and public opinion researcher J. Ann Selzer. Her polling company was given an A plus rating by FiveThirtyEight for its accuracy and methodology. The site has also been called the best pollster in politics.

Ann, thank you so much for being here. In your experience, has any candidate for either party ever been in the position that Trump finds himself today and lost Iowa?

J. ANN SELZER, PRESIDENT, SELZER AND CO. POLLING: Yes, but, so it never at this stage of the cycle has anyone cracked the 50 percent mark. Bob Dole many, many years ago polled at 50 percent, but that was early on. And then the competition heated up and he didn't end up where he started out. So, this is late in the cycle for someone to be above 50 percent.

SMERCONISH: I remember a conversation in 2016 where Trump opponents would say those who didn't want him to win the nomination, well, if only the field would consolidate.

Here we are in 2024. There really has been consolidation of the field, but it hasn't hurt him. What's your analysis of that?

SELZER: Well, our December poll, I think, upended the conventional wisdom in several ways. And one was that people thought as candidates were not named Trump dropped out, that that would mean that the non- Trump candidates who remained would do better. The only candidate who did better was Ron DeSantis, and it was just by three percentage points.

In fact, Donald Trump's standing improved by eight percentage points. So, the idea that fewer candidates would hurt Trump, our poll would defy that. SMERCONISH: I think to many of us who watch the Trump rallies, we think that it's just an opportunity for him to come out and deliver one-liners and enthuse his base, but I know from reading of some of your analysis, there's much more going on at those rallies from an organizational standpoint than meets the eye. Will you speak to that?

SELZER: Well, this is what I'm hearing anecdotally. But it harkens back to the rallies that George W. Bush was holding very close to the caucus.

Where it wasn't just, let's all get together and feel good. It was marching orders. There were instructions. It was how to get your commitment card signed. And by the way, go out and talk to your friends and neighbors, bring them all to caucus. I think the planning in place with those rallies is to overwhelm even what current polling might be showing.

SMERCONISH: Defying expectations, you know, we always want to know who is going to defy expectations in Iowa. So, the caucus is nine days away. Ten days from now, who perhaps will have defied those expectations?

SELZER: I think that's anybody's call. If you remember 2012, a candidate name Rick Santorum, I always get him confused with Ron DeSantis. Rick Santorum was polling in single digits all through the cycle until the first day of our final pre-caucus poll he got double digits. The next night, more, more, more until the trajectory had him coming up and almost meeting Mitt Romney. And in fact, Rick Santorum won the Iowa caucus.

[09:40:00]

So, he came from out of nowhere. We have seen it happen. And that little whisper in my ear says it could happen again. So, who knows? Anything could happen.

SELZER: You're an unaligned pollster. Bill McInturff is a Republican pollster. A finding of his relative to the general election is, I think, stunning. I'm going to put it on the screen and read it aloud to the audience.

So, question was asked, generally speaking, would you say that President Joe Biden's policies have helped or hurt you personally? He comes out at a net negative 30 percent.

And yet when Donald Trump is referenced -- quote -- "thinking back to when he was president, generally speaking, would you say that Donald Trump's policies helped or hurt you personally?" He's at plus 12 percent.

Analyze that data. First of all, does it comport with what you are finding in Iowa?

SELZER: We have not asked that identical question. What I will say is that the people who are supportive of Trump are articulate in things that I have observed that they liked the policy. Their life was better under that.

I cannot tell you that it matched what we were polling about him at the time he was president. So, I think there's -- sometimes there's a halo effect on the memory of a candidate that you like that when that person was in charge, things had to have been better.

SMERCONISH: Via the "Des Moines Register," I read your polling from December. Am I correct in saying there will be one more that you're soon to drop within the next nine days, a final poll?

SELZER: If history is any guide, we do a final poll right up close to the caucuses.

SMERCONISH: Ann Selzer, thank you so much for being here. Appreciate your expertise and analysis.

Checking in on social media comments now. What do we have, Catherine? From the world of X or Twitter.

Third party candidates will decide the 2024 presidential race, so answer to the poll question will depend on what that will look like.

Well, Darrel C., I mean, we still have, you know, Robert F. Kennedy Jr. out there. The news was this week that he qualified for the Utah ballot. I think the great challenge for him is whether he's going to be able to get on a sufficient number of ballots to really be impactful in this race.

By the way -- by the way, I did a radio interview with the head of the libertarian party a month or so ago where she did not rule out the prospect that RFK could also make a bid to be their candidate. Keep your eye on that.

And then, of course, you have got No Labels. You have got Manchin, Huntsman, Joe Lieberman, that whole effort. They say they are not going to determine until the spring whether they are going to move forward, but, yes, third party candidacies this year I think for the first time since '92 are going to play a significant role.

Still to come, more of your best and worst social media comments. And don't forget to vote on today's poll question at Smerconish.com. Where is former President Donald Trump more vulnerable, in the realm of constitutional interpretation, think Colorado, think Maine challenge to his candidacy, or is it at the ballot box?

While you're there, sign up for the free daily newsletter for which Jack Ohman, the Pulitzer Prize winner, sketched this cartoon this week about Nikki Haley.

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[09:47:24]

SMERCONISH: Hey, gang, make sure you the follow me in all the usual places on social media because I do enjoy responding in real time, and I don't see them in advance, to your social media reactions live during the course of the program.

Catherine, what do we have? What has come in? From X.

Let the people decide if Trump should be president. I dislike him, but I dislike Biden's policies more. Partisan state hacks should not remove candidates from the ballot.

I come to the same conclusion, but not through the same logic. That's not the way that I would phrase it. I'm in the same category as Professor Lessig from Harvard, and hence today's poll question at Smerconish.com.

I don't think the way for those who want to defeat Trump is to defeat him through the secretary of state of Colorado and then the Colorado Supreme Court saying, well, we're going to disqualify him from the ballot. In fact -- can I put the 14th Amendment back up on the screen real quick? Do you have that handy, Catherine?

I mean, it's ambiguous at best. No person shall be a senator or representative in Congress, or elector of president and vice president.

Leave it up there for a second. So, they articulate senator, they articulate representative, they articulate elector, but they don't say president. And now you can say, well, wait a minute, Michael. Did the president take an oath? Yes, he did.

Is he an officer of the United States? I would think so. So, it's ambiguous at best but I just don't think that's the way in which -- you can remove it now. I just don't think that that's the way in which you want to defeat Donald Trump for those of you who want to defeat Donald Trump. Not through, you know, that mechanism.

And, by the way, it's not the same for the four indictments. Like the four indictments are not going to remove him from the ballot. The four indictments are going to provide you, if there's a trial, with information that perhaps you need to go make a decision before you cast a ballot. But it shouldn't be through the 14th Amendment application, I think.

What else social media during the course of this program? Trump is running out the clock with his judges on SCOTUS, we're screwed.

I don't think that's necessarily the case. I would be disappointed if it breaks 6-3 in terms of how this turns out. Is he running out the clock? He absolutely is.

And by the way, many people criticized me before the break and they said, why are you critical of Jack Smith? Because I have been critical of Jack Smith in not flat out saying that he wants to try Trump before the election. He doesn't say that, but that's the basis for trying to get expedited review of the cases that I'm discussing here.

And then people have said to me, well, why don't you criticize Trump because Trump is trying to run out the clock? And he is trying to run out the clock, for sure. [09:50:00]

And my answer is to say, because the case against Donald Trump is United States versus Donald Trump, right? It's like all of us. And I -- you know, we can't speak for Trump, but we can speak for our government. And I don't think that the government should hide the ball in that regard. Just flat out tell people, hey, we want the case tried because we think the American voters need to know this information before they cast a ballot as between these two candidates.

Still to come, the final results of the poll question from Smerconish.com. Lawrence Lessig inspired it. I would be very curious to see the result. Where -- where is Donald Trump more vulnerable? Is it in these legal challenges that we've been discussing? Or is it, you know, when he stands before the electorate?

By the way, if you subscribe to the daily newsletter, you're going to get exclusive editorial cartoons from some legends like this commentary from the great Rob Rogers. Really great. Well done.

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SMERCONISH: So, there's the result so far of today's poll question at Smerconish.com.

[09:55:02]

Oh, good. I like the voting, 25,293. I was worried that it was a bit egghead-ish. Where is former President Donald Trump more vulnerable? Fifty-nine percent say he is more vulnerable at the ballot box. I'm thinking tomorrow's poll question will be, which will he face first, a jury of his peers or the electorate?

Social media, we have got just a couple of seconds left. What do we have? From the world of X.

Why invite comments then don't read them because you're offended? People are frustrated because your arguing process when so much at stake, will America elect a con man, criminal, liar, thief, someone who won't uphold the -- told you so.

Hey, I read all of yours or just about. I got halfway through it. I knew what the gist of it was. And I read all of yours. Give me a break.

Process is important in this particular instance. Let me make this crystal clear. I believe that Donald Trump's immunity argument in front of the Court of Appeals for the D.C. Circuit is a stone-cold loser. So too do I believe his argument in front of the D.C. Court of Appeals for the D.C. Circuit on double jeopardy.

But what is most important in that case is how long is it going to take to run its course, because that will determine whether there is a trial before the American electorate gets to weigh in that case. That's what I was laying out for you.

OK. See you next week. Thanks.

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