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Smerconish

What Will Garland Do?; Will A Third-Party Candidate Emerge After Super Tuesday?: No Labels To Decide Next Week On "Unity Ticket"; Biting Attacks Send Commander From White House To Dog House. Aired 9- 10a ET

Aired March 02, 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]

MICHAEL SMERCONISH, CNN ANCHOR: What Will Garland Do? I'm Michael Smerconish in Philadelphia.

Attorney General Merrick Garland may eventually make a singular decision that determines the outcome of the 2024 election whether the DOJ will continue to push for Donald Trump to be tried before Election Day in the federal case premised on alleged election interference. For months here, I've delivered commentaries focused on the timing of this particular prosecution because I think it's most perilous to Trump. And I've often done so with the assistance of Elie Honig will join me again in a moment.

Here's the issue. On Wednesday, SCOTUS granted cert and announced that the High Court will hear Donald Trump's immunity defense. I don't think the ultimate outcome is in dispute, I think Trump loses that claim. In my opinion, it's unlikely it's illogical that the court will provide blanket immunity from criminal prosecution to an American president.

More important is the process, the timing of the court's decision. Garland told CNN's Evan Perez in January that the cases were brought last year, and that the timing is now in the hands of the judicial system. We know that the Supreme Court's oral arguments on Trump's immunity claim are scheduled for the week of April 22nd. We don't know for sure, but it suggests the decision is probably then going to come in June.

And Judge Tanya Chutkan has said that she will provide the parties with three more months to prepare for trial. That means we're talking end of summer coinciding with Labor Day, the traditional start of the final sprint toward Election Day. The first debate is scheduled for September 16 at Texas State University and voting begins as early as September 20 in three states; Minnesota, Virginia and South Dakota.

But the DOJ has a standing policy of not taking certain actions close in time to an election. Five recent attorneys general have all signed the same memo affirming the importance of keeping politics out of investigations and criminal charges. Republican Michael Mukasey, the 2008, Democrats Eric Holder in 2012, Loretta Lynch in 2016, Republican bill BARR in 2020, a Democrat Merrick Garland in 2022. They've all used the same language, including this paragraph, "simply put, politics must play no role in the decisions of the federal investigators or prosecutors regarding any investigations or criminal charges." I'm going to stress this part, 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.

The US attorney's manual has similar language. And when you think about it, it all makes sense. 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 perhaps the logic would preclude them from influencing the timing of a trial for the purpose of affecting an election.

In the Mar-a-Lago document case, Special Prosecutor Jack Smith asked Florida Judge Aileen Cannon for a July 8 trial date. Trump's lawyers are asking for it not to be held until after the election. They're arguing that otherwise, it'll be election interference. Yesterday Friday, Judge Cannon held a four-hour hearing on that case, but did not make any trial scheduling moves. She did, however, raise the issue of the so-called 60-day rule. Special Counsel Prosecutor Jay Bratt said the DOJ policy does not apply to cases that have already been charged, and that the department had reviewed the policy to ensure they were in compliance.

The trial date in the January 6 case will be set by Judge Chutkan, not the DOJ. But rest assured Trump will continue with his delay tactics, hoping that he will win the election and either have DOJ stopped the prosecution or self-pardon. The way the DOJ influences the trial date will be in either agreeing or opposing Trump's delay tactics.

So here's the question for Merrick Garland, does the policy which avoids an appearance of politics in investigative steps or criminal charges extend to actually trying a case. Arguably the investigation is over, the criminal charges. They've already been filed so prosecuting Trump in the lead up to the presidential election would not technically run afoul of those DOJ docs, like Jay Bratt said yesterday in the Mar-a-Lago case.

[09:05:15]

Nevertheless, does Merrick Garland want the perception of putting a former president on trial at a time when he will be his party's nominee? If Garland is hesitant to do so, then where's the line for when it becomes inappropriate to try Trump? Is it 60 days before an election? Is it 90 days before an election? There's no precedent for this situation. No rulebook governs this particular scenario.

Truly, we are in uncharted waters. And Merrick Garland is holding a lot of the cards. It all leads me to today's poll question today a smerconish.com. Go and vote on this. Is it appropriate for DOJ to try Trump in the fall of 2024?

Joining me now is Elie Honig, CNN Senior Legal Analyst, former federal prosecutor. Elie, thanks so much for coming back. I think I made clear, judges set trial dates, judges do, but to what extent can a prosecutor affect that decision?

ELIE HONIG, CNN SENIOR LEGAL ANALYST: Well, the prosecutor has a substantial say in this decision, Michael, in every case, not just this one. There's always this sort of push and pull going on where prosecutors saying, judge, we'd like to try this case soon, usually sooner. And typically, defendants are seeking to push it back. Donald Trump did not invent the delay tactic. Take my word for it.

Ultimately, it is the judges call but you are absolutely, as a DOJ prosecutor, you are making a conscious specific strategy call in when you ask a judge for the election. And judges do take that heavily into account.

SMERCONISH: OK. 60 days, 90 days, where can I go and read it? Like where is this standard, Elie?

HONIG: It is nowhere, Michael. So this is sort of an urban legend within DOJ. It comes from that two-page letter that you just showed in your introduction, which is sent by AGs of both parties over the last two decades or so. But that letter, what it says is that, we at DOJ need to be careful and avoid taking publicly visible steps on a case that might affect the election to close to the election. But nowhere does it actually say the number 60.

In fact, there's a little bit of variance where I was a prosecutor in New York, we were always taught it was 60 days. But you can get people from other districts, federally, who will say they were taught it was 90 days. But the spirit of the rule throughout is basically we don't want to do things that will be visible to the public that might influence an election to close to an election.

SMERCONISH: You and I have spoken in the past of how relative to Jack Smith's pleadings, the election is the Voldemort. You know, that which is never spoken explicitly. Nevertheless, if he is pushing to get the case tried before the election, is he running afoul of the documents that I showed, the attorney general memos that we've been referencing?

HONIG: So, Jack Smith's team was asked that exact question, as you discussed earlier, in court yesterday. And they sort of threaded the needle and said, well, no, because we interpret that rule that we don't do things close to the election. That only applies to investigative steps. And the right, it applies to, for example, you would never do a search warrant on a candidate 12 days before an election. You would never indict a candidate 14 days before an election.

But if you look elsewhere, if you look at the actual justice manual, now, this is essentially the internal Bible for DOJ. We all have them printed out on our desks. There's a provision in there that says, prosecutors should never select the timing of any action. Let me say that, again, any action with the election in mind, with the timing of the election in mind.

And it's hard for me to square that with Jack Smith making decisions, asking for trial, asking for everything to be mega expedited, because even though we won't say it, I don't think anyone would disagree that what's motivating him is the Election Day. So I do think that that violates DOJ his own internal manual.

SMERCONISH: So at a certain point in that hearing yesterday in Florida, I know this is probably confusing for people who are not in the weeds on it. But at a certain point in that hearing, the Trump lawyers then, of course, they don't want the case tried before the election. But at a certain point, they said well, you know, maybe August would be appropriate.

And I wondered, Elie, are they potentially using the Florida case to block the January 6 case? Because as between the two, and I'm curious to hear your thoughts, they probably rather he be tried for the Mar-a- Lago documents, than the election interference in DC.

HONIG: That's exactly my read. There's a strategic play happening here that we just saw yesterday. So I believe that Donald Trump's team thinks that they would -- if they had to choose, they would rather try the Florida case, the documents case than the DC case.

[09:10:10]

First of all, Trump's team is going to have a way more favorable jury pool in Florida than they will in DC. If you just look at the popularity numbers, the voting numbers. And second of all, I think they've calculated that there will be more political damage done on the January 6 case. It's just more damaging conduct, that's more problematic for Donald Trump.

And so, when they asked yesterday, the judge in Florida, for an August trial, I don't think they really want an August trial. But I think what they're trying to do is block out August, September, October to make it impossible for the DC case, the January 6 case, to get moved that.

And by the way, if a trial date is set for July or August in Florida, that's not set in stone. Judges set trial dates, and then something else comes up, and they move them back all the time. So I think there's a two step here. I think they're saying, OK, Florida judge will accept the trial in August, and then watch for them in June or July, Trump's team to go back and go something happen, problem with declassified documents, now you need to move it past the election.

SMERCONISH: Quick final question. As between Merrick Garland and Jack Smith, who is calling the shot as to how aggressive to be in pursuing for a trial, even if it means in the fall?

HONIG: Well, it should be Jack Smith's decision. If we look at the guidelines about that govern Special Counsel, it says that the Special Counsel is not subject to the day to day supervision of the attorney general. Merrick Garland has made very clear, I'm not calling the shots here. But I do think it's also worth noting, Michael, if we have to apportion blame here within DOJ.

Let's remember, the reason we are under a time crunch is because DOJ had unilateral control of this case, and when they charged it, and they did not charge it for two and three quarters years. Most of that blame falls on Merrick Garland. Jack Smith actually indicted this case about nine months after he took over.

And so when they indicted this case, I don't know if people even remember this. This case was indicted in August of 2023, seven months ago. And when they indicted in August 2023, DOJ left themselves and all of us with about one year to get this case tried. In enormously complex case, they should have know there would have been major constitutional issues like this. I wrote about it in my book, before this case was even indicted.

It was obvious they left themselves with not enough time. And the fact that we're in a time crunch now, I think mainly the blame here falls on DOJ, specifically Merrick Garland.

SMERCONISH: It's a great point. Elie, thank you as always, really appreciate it.

There's a lot there to unpack. I want to know what you think. Go to my website, smerconish.com. Answer today's poll question. Now that you've heard the briefing from, Elie, isn't appropriate for DOJ to try Trump in the fall of 2024. What are your thoughts?

Hit me up on social media? I'll read some throughout the course of the program. What do we have?

Be careful what you wish for. So far, these indictments have only fueled the Trump campaign. I would not like to be a prognosticator.

Can I say such to your point when you say they've only fueled the Trump campaign? Catherine (ph), I'm sorry to catch a cold. Do you have the full screen of the New York Times poll that came out this morning from Siena College? Because this is the very latest data from -- there it is, 48-43. So to your point, such, Be careful what you wish for. And I get it, it's more than just this issue. But that is the most recent polling on the state of the presidential race.

Soon to come, Super Tuesday. Super Tuesday is this week. But while the results of the major parties seem preordained, the third party situation is heating up. RFK Jr. just got on the ballot in the crucial states of Arizona and Georgia and is still in play for the libertarian slot.

Meanwhile, Friday No Labels, next Friday, No Labels going to gather reps from all 50 states and decide are they moving ahead with a ticket? One person who has already pulled out is Nikki Haley. Plus, it's conventional wisdom that the core issue for Republicans is the border and for Democrats is abortion and reproductive rights. How come when pollsters ask voters what's important to you right now? Abortion didn't make the list. The editor in chief of Gallup is here to explain in just a moment.

And while on the topic, if you subscribe to my free daily newsletter, you're going to get exclusive editorial cartoons from the legends of what Rob Rogers sketched for us this week. [09:14:33]

(COMMERCIAL BREAK)

SMERCONISH: Will this be the election when it is not the economy stupid? Americans are now calling immigration, the most important problem facing our country. According to this latest polling from Gallup, 28 percent of Americans list immigration as their top concern. That's gone up eight points in the last two months alone, especially among Independents.

54 percent say illegal immigration is a critical threat to US security. It's no surprise people are feeling fed up with the current system. Last week we felt the impact of poor border security in places like Athens, Georgia, where Liken Riley was brutally killed while out on a campus jog. The suspect arrested was found to have entered the country illegally as a Venezuelan migrant.

And this week in New York City, Mayor Eric Adams is calling for changes to the city sanctuary policies after several crimes in the city were traced back to recently arrived migrants. Biden and Trump, they both towards separate border sectors in Texas this past week. No doubt these simultaneous visits were prompted by a steep rise in concern among voters during an election year. But is this the only top of mind issue?

[09:20:03]

This past midterm election, abortion was deemed the pivotal concern for voters following the fall of Roe vs Wade. It might very well still be, but not according to this recent Gallup poll.

They asked 1,016 people across all 50 states to say what they believe to be the most important problem facing the country. Women's reproductive rights did not even make the list. Immigration, government and the economy were the top three. So, which one will be the issue if there will be an issue in 2024?

Joining me now to discuss is the editor in chief of Gallup, Mohamed Younis. Mohamed, nice to have you back. Were you surprised that the recent survey didn't have abortion among the top 15?

MOHAMED YOUNIS, EDITOR IN CHIEF, GALLUP: Not necessarily. I think what I was looking for in this survey, what our team was looking for is whether immigration was going to continue to inch up, because we've seen it inching up now for months. This is a question we ask every month. It is what is the most important problem facing the country today?

It's an open-ended question. Michael. People could say Michael Smerconish is the most important problem facing the country.

SMERCONISH: They'd be right.

YOUNIS: I'm sure some people would feel that way. But 28 percent of Americans right now say it's immigration, with 57 percent of Republicans. But you know, Michael, on immigration, I think this is not really the question that tells us how potent this issue is.

The next question is really where it's at, which is the critical threat question. This is a question where we present Americans with a list of potential threats facing the vital interests of the United States. At the top are is always great recently, cybersecurity and terrorism, nuclear capabilities of various states. But right in the middle of that list, is this issue of people crossing the border without documentation at the south. And right now, 55 percent of Americans are record high.

In that questions trend, are saying that this is a critical threat facing the vital interests of the United States; 90 percent of Republicans, 54 percent of Independents. on that list, Michael, this issue of immigration is actually right in between China's military power, and right above Ukraine and the war there. So in terms of the order of magnitude --

SMERCONISH: So what I'm hearing, Mohamed, what I'm hearing from you is folks are seeing this in a national security context.

YOUNIS: Absolutely. And that's exactly what this question aims to gauge is, of all of the national security issues, what are -- what is the ranking order with the public? And what this poll shows is that this topic is smack dab in the middle of that list.

SMERCONISH: OK. So you said you weren't surprised that abortion -- and I should point out, this was an open-ended question.

YOUNIS: Yes.

SMERCONISH: It's not as if Gallup read to people 15 issues. You said, hey, tell us whatever you want to tell us and abortion wasn't on that list. We just had the IVF situation in Alabama, which put it back on the front page. Were you in the field before or after that news story?

YOUNIS: We came out of the field right before that news story. And I'm happy you brought up Alabama. This is all not to say that abortion is not going to be a critical issue for many voters. What we've seen since Dobb (ph) is a gradual shift to people wanting to see less restrictive abortion laws in the United States, among those who are dissatisfied with abortion laws. But more importantly, we saw a significant uptick in people identifying as pro-life.

Now -- and that jumped to 55 percent. That's now back at 52. And people who identify as pro -- excuse me, pro-choice, people who identify as pro-life are now back on the upswing. So the Dobb's (ph) reaction is in the middle of a calibration, recalibration, back to where things were. Decisions like what happened in Alabama are only going to refocus people who are prioritizing this issue to continue to focus on it.

And I would imagine, I don't know if it's going to be at the top of the list, but situations like that will make abortion more likely to make that most important problem list. But right now, it's not there -- SMERCONISH: OK. Mohamed, wipe the slate clean. You're the editor in chief of Gallup, give me the 32nd version, big picture of what you find most significant about the mood of the country.

YOUNIS: Right now, I think the most significant thing is President Biden is significantly behind every modern predecessor that sought reelection on a series of metrics that have been the core of where the country looks to decide to reelect somebody. One is, are you better off than you were three years ago, about overall approval, economic confidence improving but certainly not where he would want it to be.

And then the major issue that we haven't talked about for him with his base is the Middle East conflict. We do see Democrats giving him his lowest marks on that issue. 60 percent of Democrats approve on that issue. 80 plus approve overall. So on those historic metrics, he's behind, and his team, I'm sure is focused on that.

SMERCONISH: To be continued, you'll come back, I hope. Mohamed, thank you so much.

YOUNIS: Thank you.

[09:24:58]

SMERCONISH: Social media reaction. This comes from the world of X, formerly known as Twitter. It's good to see Biden is finally acknowledging that the border is a problem. Vice President Harris as borders czar are has not done anything. Close the border, deport those that crossed illegally. It's not difficult.

I don't know if it's so simple as you put it, but you've got two different approaches. One being the President talking President Biden about, you know, re-crafting the asylum rules through executive order. I don't know how you pay for it, if you're doing it through executive order, and Trump talking about mass deportations. And of course, Trump having put the kibosh on that Senate bipartisan bill, and seemingly not being held accountable for that, at least by Republicans.

I want to remind you, go to my website at smerconish.com. Here's today's poll question. Is it appropriate for DOJ to try Trump specifically now in the fall of 2024? That's what I'm getting after in the question.

Up ahead, is the 2024 presidential race about to get a lot more intriguing? This coming week, this Friday, No Labels is going to gather 800 delegates from all 50 states to decide whether to mount a third party unity ticket. Meanwhile, RFK Jr. got on the ballot of two key states, two battleground states, Georgia and Arizona, and spoke at the recent California libertarian convention. Might they join forces meeting RFK Jr. and libertarians?

Be sure to sign up for my free daily newsletter at smerconish.com. When you vote on the poll question, you'll get exclusive content from winning cartoonists, editorial prize winning cartoonist like two-time Pulitzer Prize winner, Steve Breen. Check that out.

(COMMERCIAL BREAK)

[09:31:09]

SMERCONISH: Will a third-party candidate emerge after Super Tuesday? More than a dozen states will hold their primary races in just three days. And then three days after that the centrist group, No Labels, says that it plans to evaluate their chances of pushing for a third- party choice.

This is the statement No Labels gave to us, "On March 8th, we will gather our 800 delegates from all 50 states who would ultimately approve a final unity ticket to discuss the path forward."

Nikki Haley says, she's rejecting a third-party No Labels presidential bid possibility because she wouldn't be able to work with a Democratic vice president.

Meanwhile, American Values 2024, that's a political action committee that's helping Robert F. Kennedy Junior's presidential bid, says, it has gathered enough signatures to get his name on the Arizona and Georgia ballots in November. Biden -- President Biden narrowly won both of those states by less than half a percentage point in 2020. The PAC also says that it plans to spend up to $15 million to target 10 other states, including Texas, California, New York, and the critical battleground state of Michigan where President Biden faced a sizeable protest vote from uncommitted primary voters this week.

Robert F. Kennedy Jr. spoke at the California Libertarian Party Convention last weekend. He's also been invited to speak at the New York Libertarian Convention as well. They're going to decide who their nominee will be Memorial Day weekend. When asked if RFK Jr. was still in contention for the libertarian line on the ticket, the party's national committee chairwoman, Angela McArdle, told us, yes, he is.

Joining me now is Matt Welch. He's the editor at large at Reason, the nation's leading libertarian magazine where he recently wrote this piece "Presidential Ballot Will Be Crowded With Third Party Candidates." So, Matt, nice to have you back. What chance is there that RFK Jr. ends up as the libertarian nominee?

MATT WELCH, CO-HOST, THE FIFTH COLUMN PODCAST: I would put it right now is pretty much slim, none and fat. He was just at the California Libertarian Party Convention, as you just mentioned, and they held a straw poll afterwards, 95 votes. He got one. He came in 11th place. Lars Mapstead got 24.

He has a series of decidedly nonlibertarian policy positions on things like environmental regulation and the minimum wage, free speech and plenty other things besides. And libertarians are like wet cats. They're very difficult to herd and they don't like to be told by rich famous outsiders that they need to vote for their candidates. So, I don't think it's very likely.

SMERCONISH: Can he -- can he get -- can he get on 50 state ballots without --

WELCH: Yes.

SMERCONISH: -- being on the libertarian line? As I just mentioned, he just got on Georgia and Arizona. Those are two battleground states.

WELCH: Yes. So, there's two main ways that you can get on ballots as a nontraditional presidential candidate. One is through the long slow joyless patient slog of party-building, volunteerism, and just fighting in the trenches over multiple cycles. The libertarian party does that very, very well. They've had -- they've been on 50 plus one state ballots for the last several elections.

The other way is to throw a whole bunch of money at the problem. RFK has a whole bunch of money. He's going to raise -- he already has raised more money than any libertarian ticket ever has or ever probably will in near term. So, if you throw money at it, which he can and already has been doing, then you can hire the signature gatherers, hire the lawyers to fight the states that are throwing all kinds of incredible roadblocks at them, including Kansas, which is just about ready to quadruple its signature requirements based on a law that's going to be signed probably in the coming days.

SMERCONISH: Next Friday, No Labels gathers, 50 states, 800 delegates. I'm wondering, you know, I remember there was a Republican leader in Philadelphia. I knew him, Billy Meehan. I'm giving him the credit whether he deserves it or not, because he's the first person I ever heard say, you can't beat somebody with nobody.

[09:35:03]

Are they going to be able to find someone who is, you know, meeting the criteria they've set forth to be their candidate, their ticket, if they decide to do this?

WELCH: They are running out of warm bodies. I mean, they were flirting with Joe Manchin for a long time. And he's criticizing them pretty strongly in saying that they're going to play a spoiler role if they run. And they have said, going in, we will not be a spoiler. We're not going to hand the election to Trump. We're only going to run if we can win.

Nikki Haley just dropped out. Larry Hogan has a previously. There's only people like Chris Christie who is thirsty for the White House. Thirsty as Joe Biden used to be before he got there. And I'm not sure that there's this big centrist groundswell in American politics right now. People are fed up with establishment politicians, but not really eager for more third-party establishment politicians.

So, I would take --

(CROSSTALK)

SMERCONISH: I don't agree with that. I don't -- I don't agree. If your -- if your argument -- if your argument is there's not a groundswell for Chris Christie that I believe all the data shows it. But I look at all the data you do and three-quarters of Americans, they want another choice. I think the moon and the stars have lined up for this election but you got to have candidates. You've got to have -- and I've not heard any name so far that I think, OK, that's the ticket. You get to the final word. Go ahead.

WELCH: Yes, I agree with you. And there's going to be a stronger third-party showing this time than we've seen since Ross Perot. The question is to who and to where. I think No Labels has some internal contradictions that they need to work out and that they haven't at all. And so, it's just a question of who, are the bodies in the field right now? That body is RFK.

SMERCONISH: Matt, thank you for being here. I appreciate it.

WELCH: Thank you, Michael.

SMERCONISH: Let's check in on social media. By the way, just thinking of the week ahead Super Tuesday on Tuesday, State of the Union on Thursday. Of course, you can watch it here on CNN. And then Friday, No Labels with its gathering. Going to be incredible.

What do we have? Third-party will never win a presidential election. The media covering this is why the media is no longer a trusted source.

I think what you're saying, Antione Jackson, is because the media doesn't give deference to third-party candidates, this media does. I'd love to give more attention to third-party choice. I know some people they say, well, I'm all for having a third-party choice, but not this year. The stakes are too high.

To which I say, this is the perfect cycle. When will you get more disenchantment with both the leading candidates than this cycle? I've never seen anything like it.

Still to come, a Secret Service report just revealed that there were two dozen biting attacks on Secret Service agents before President Biden's German shepherd, Commander, was finally removed from the White House. What took so long? And who's to blame for this, the dog or the owners?

Don't forget vote on today's poll question at Smerconish.com. Is it appropriate for DOJ to try Trump in the fall of 2024? Go vote.

(COMMERCIAL BREAK)

[09:42:26]

SMERCONISH: Harry Truman once said, if you want a friend in Washington get a dog. But President Biden's two-year-old German shepherd Commander was finally exiled from the White House last October after a series of biting attacks on Secret Service agents.

It took a Freedom of Information Act request for the public to learn all the gory details, the frequency and severity of the violent encounters. More than 400 pages of heavily redacted U.S. Secret Service documents revealed that there had been two dozen attacks in a year. One incident left so much blood on a White House floor that a tour had to be interrupted while it was mopped up. Another, in Rehoboth Beach left an agent needing six stitches in his forearm. Another sent an agent to the hospital and that doesn't include additional incidents that CNN has previously reported involving executive resident staff and other White House workers. He's the second German shepherd to be removed from the White House.

In 2021, the family's elder dog, Major, caused an injury to a Secret Service agent before being taken away to Delaware. In the documents, agents complained that the dogs, even after being put on supposed high watch, would sometimes appear out of nowhere or be roaming around unsupervised.

Joining me now is Jill Abramson, former executive editor of "The New York Times, who wrote this piece in the Washington Post, "Don't blame Biden's dogs for the blood on the White House floors." Jill, thank you for being here. You pored through all the documents. What most stood out to you?

JILL ABRAMSON, FORMER EXECUTIVE EDITOR, NEW YORK TIMES: Well, before we go into the details, I just wanted to give a hat tip to CNN because none of us would know about these incidents but for CNN's Freedom of Information Act request for

these Secret Service documents. But, you know, they reveal, you know, very serious attacks by these dogs and its mainly Commander who was the miscreant in the attacks described most -- in the most recent documents released. But as you mentioned, Major, another German shepherd owned by the Bidens, also was responsible for some bites. So, it just struck me as, you know, very few people have two dogs who are both biters like that and biting Secret Service agents who protect the first family and also other members of the White House staff.

[09:45:01]

It was not a very appetizing, certainly, picture to read through, you know, all of the descriptions of these attacks. They were attacks.

SMERCONISH: So, your column, your essay, prompted a conversation with my wife about our dogs. And it's kind of funny, our recollections differ. I revere the memory of our first dog, Winston, a cocker spaniel. And she said, don't you remember Winston was sometimes aggressive with our kids when the kids were young? And I said, well, that's because they often had food on their fingers.

And then she said, well, what about Checkers, our labrador? And I said, well, Checkers was a saint. And she said, don't you remember that day with the FedEx delivery man? To which I think I said, well, that guy I deserved it.

After Checkers, we had two miniature dachshunds, Mr. Lucy and Floyd. She reminded me that Floyd was a bit of a nipper. I had to concede that point. Now, we have two rescues, Cora and Pots. My wife said, whenever there's a worker in the house, we always keep Cora locked away. And I said, that's because Cora is a good guard dog and she doesn't like strangers. My point, Jill Abramson, is this, dogs are sometimes unpredictable, even my own.

ABRAMSON: So true. So true. And right now, as I'm talking to you, Michael, Magic, my dog, is -- looks to be snoozing peacefully on a couch across from me. But should someone go by the window, he may start barking. And it may sound ferocious but the kinds of behaviors we're talking about are not the ones described in the Secret Service documents.

I too, I have a dog who had terrible leash aggression. But the point is that when you're worried about an animal's unpredictable or even violent behavior, you bring in trainers who know how to work with the dog. It takes a lot of work by their humans too to get these behaviors gone. But in this case, nothing seems to have worked, in the case of the Bidens.

SMERCONISH: Right. And two dozen -- two dozen -- you know, what the hell happened to the one bite rule? Two dozen incidents and it's the Secret Service being bitten. Jill, thank you for being here. I appreciate your having written that piece.

ABRAMSON: Thank you so much for your interest, Michael, and your dogs are beautiful.

SMERCONISH: Thank you for that. On that my wife and I agree. That's what we agree. They are beautiful.

All right. Checking in on your social media comments from the world of X, formerly known as Twitter. The fact that this is a story just shows people are trying to take Biden under. Focus on the policies that are arguably not good for his dog behaving badly.

Right. It is a cheap shot. Like, how could we even be talking about this, right? No, no, no, no, no. If one person were bitten, if two people, five people, 22 incidents, and it's the Secret Service who are being bitten, it's worthy. And we only know it as Jill said, because CNN filed a FOIA request. No, it's a legit story. Sorry.

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. Is it appropriate for DOJ to try Trump in the fall of 2024?

Sign up for the free daily newsletter when you're there. Jack Ohman provides exclusive content to us. He's the Pulitzer Prize winning editorial cartoonists. Check that out.

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[09:53:17]

SMERCONISH: OK, there it is the result so -- oh, come on. Come on, guys, ladies. Is it appropriate for DOJ to try Trump in the fall of 2024?

Nearly 40,000 have voted so far and 88 percent are saying yes. My disappointment is -- put that camera on me for a second -- it's not that lop-sided a question. It is not -- it is not a 90 percenter. Like, you're making me think that if instead the poll question today was, why don't we just dispense with the trial and move right to the sentencing phase? That would probably beget 82 percent of the audience today.

No. That's the wrong answer, at least by that margin. It's a much closer call. OK. Here's some social media that came in during the course of the program. What do we have?

It appears Trump has SCOTUS as his law firm, the GOP Congress as his campaign arm, and you as his media. Where are the checks and balances -- Ms. Beau asks.

Elie Honig, again, made an excellent point. If we're up against the clock in concluding the federal prosecutions of Donald Trump it's not Trump and his lawyers or SCOTUS's fault. It's Merrick Garland's fault because he lollygagged. It never should have taken so long for him to appoint Jack Smith. Jack Smith has moved expeditiously.

So, Trump is doing what any defendant would do in that case, but he'd run out of time if Garland had gotten off the dime. That's the bottom line. What else? I love this part of the show. You know I do.

If people don't vote third-party this cycle, they never will. I have to say, Erick, in -- you know, God willing if I'm talking about the 2028 election, I'm not talking about third-party candidacies.

[09:55:04]

If this cycle doesn't, at least, produce a legitimate three-way or three-way plus contest where somebody gets on the debate stage, right, a la Ross Perot, then I too give up. I too give up. Because this, according to all the data, is the cycle where people are yearning.

Gallup says a plurality or independence, not Republicans or Democrats. People want a choice. Give it to them.

One more, if I've got time. Not closing the border will cost Biden the election. He cannot win.

Private Account, I got to say that poll today, the combination of the Gallup data and Mohamed Younis, the editor in chief, dissected it for us. And the new Times/Siena -- it's all saying the same thing. It's all saying the same thing. And the border is largely driving the way people are feeling, as Mohamed pointed out, because they see it as a national security threat. I'll see you next week.

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