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Smerconish
One-On-One With Robert F. Kennedy Jr.; Defense Spotlights Inconsistencies In Cohen's Testimony; Biden, Trump Face Off June 27 For Debate Rematch On CNN; New York Times: Upside-Down Flag Seen At Justice Alito's Home In 2021. Aired 9-10a ET
Aired May 18, 2024 - 09:00 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
VICTOR BLACKWELL, CNN ANCHOR: And he hopes to earn a doctorate in data science. To Dorothy, Samara, Brian, Madison, and really all the graduates of 2024, I see you.
If you see something or someone I should say, tell me. I'm at Victor Blackwell on socials. And thank you so much for joining me today. I will see you back here next Saturday at 8:00 a.m. Eastern. Smerconish is up next.
[09:00:37]
MICHAEL SMERCONISH, CNN ANCHOR: The Art of the Deal by Joe Biden. I'm Michael Smerconish in Philadelphia.
Did President Biden just snicker President Trump with regard to the debates? By now you know, the candidates reached an agreement this week they will debate outside the framework of the Commission on Presidential Debates. They'll square off twice. First in June then in September, potentially with a vice presidential debate in between. It seemed quick and organic.
But I have my doubts. Two weeks ago, co-founder and co-chair of the Commission on Presidential Debates Frank Fahrenkopf, was my guest here. I asked him if he'd heard from either campaign.
(BEGIN VIDEO CLIP)
FRANK FAHRENKOPF, CO-CHAIR, COMMISION ON PRESIDENTIAL DEBATES: Other criticism that we just heard from the Trump campaign with regard to trying to move, you know, the baits earlier, which we think we've answered as best we can, we can answer it. We've had no contact with either campaign, which is not unusual, Michael, we normally don't have contact with the Republican and Democrat and other people who may be able to be on, for example, the Green Party will probably qualify, and Jill Stein will be their nominee. We don't talk to them until after their nominating convention.
(END VIDEO CLIP)
SMERCONISH: Well, then on Wednesday morning, President Biden released a video in which he goaded Trump to debate him outside the commission framework.
(BEGIN VIDEO CLIP)
JOE BIDEN, PRESIDENT OF THE UNITED STATES: Donald Trump lost two debates to me in 2020, the Senate said he hadn't shown up for debate. Now he's acting like he wants to debate me again. Well, make my day pal. I'll even do it twice. So let's pick the dates, Donald. I hear you're free on Wednesdays.
(END VIDEO CLIP)
SMERCONISH: Trump quickly accepted Biden's challenge. And within hours, both CNN and ABC announced they'd be hosting the debates. It seems implausible to me that agreement on such an important and complex matter could have been achieved so quickly. Did Trump's eagerness to get Biden into the ring resulted in impulsivity where he surrendered his leverage and made a bad deal? I mean, think about it, only two debates instead of the standard three, no audience, no input on moderators, no Fox News and no RFK Jr.
That last agreement was probably the easiest deal point. Bobby's the wild card they both rather not face. Initially, the thinking was that he pulled more support from Biden than from Trump, which explains the Biden campaign celebrating the endorsement of many Kennedy family members and readying an effort to oppose Bobby's ballot access. I'll talk to Robert F. Kennedy Jr. in just a moment.
But then came poll showing it's not so straightforward. Kennedy's populist message also draws from Trump, the result it seems to depend on the individual state. Under the Commission on Presidential Debate rules, a candidate needs to be on it getting at least 15 percent of the polls and on enough state ballots to reach 270 electoral votes. Kennedy has been climbing in the polls and gaining ballot access, but it's impractical to think that he can meet that threshold by next month.
And speaking of polls, they show that Biden is behind Trump. That's the uniform story told by national and battleground surveys. Just this week, a "New York Times" Siena College Poll partnered with the Philadelphia Inquirer, it showed Biden traveling Trump in four of the six battleground states, two more are within the margin of error. Nothing, a Trump trial, the stock market hitting 40,000 and big spending by Biden, nothing has moved the needle in his direction.
And time is soon to run short. Gone are the days when Americans uniformly vote on one Election Day in November. Next weekend is Memorial Day many of them get a tune out for summer. And when we reconvene in September, people will already be voting by mail. Debating now it could be seen as a Hail Mary by Biden. Perhaps the biggest advantage that Biden gleaned was to eliminate the audience.
Donald Trump thrives on live crowds, even those that oppose him. His retail game far exceeds that of Joe Biden. You can almost see the wheels turning in his head when he calibrates lines that do and don't work when in a crowd, a silent room, that's not his friend, it's steps on his oxygen hose. And moreover, by agreeing to the framework proposed by Biden, Trump has surrendered any input on moderators and he's surrendered his home court. There'll be no Fox News. They'll be just two debates. Now the pandemic that suited President Biden insofar as it gave him reason to stay hunkered down in Delaware and let the spotlight shine on Trump, making the 2020 election a referendum on the former president. But that's not going to work now and the numbers of voters who strongly oppose Joe Biden, it exceeds that for Trump in the battleground states. Two debates, that's enough to end the argument that Biden is in hiding, and less than the three that brings added risk of faux pas.
[09:05:30]
So what did Trump get out of this deal? Well, a guarantee that there will be debates. Trump's confidence that Biden will look frail and diminished in a side by side comparison. It's palpable. I believe him when he says that he thinks Biden is the worst debater he ever faced and that he can't put two sentences together. No doubt that's an opinion, reinforced by watching only outlets that show Biden stumbles on a loop. But every time that Trump criticizes Biden's acuity, he lowers Biden's bar, such that if Biden can remain on his feet with his mouth moving, watchers might think he had a pretty good night.
Remember, amid speculation as to whether Biden might pull an LBJ and stand down, he turned in a credible performance at the State of the Union and put an end to that talk, at least for now. Earlier this morning, I spoke to Independent presidential candidate Robert F. Kennedy Jr. about his exclusion from the debates. Here's what he had to say.
(BEGIN VIDEO CLIP)
SMERCONISH: Bobby, good morning. Thank you for coming back to the program.
ROBERT F. KENNEDY JR., (I) PRESIDENTIAL CANDIDATE: Thanks for having me, Michael. Happy to be here.
SMERCONISH: It seems like the only thing that the Trump and Biden campaigns can agree on is they don't want you on the debate stage. How come?
KENNEDY: I think they don't want to talk about issues that, you know, only I can talk about, a deficit, you know, about $34 trillion debt. And in four years each, these two presidents ran up almost half of that, and they can't talk about it. And that's what's driving inflation. They can't talk about the polarization that is now tearing our country apart because they're both feeding into it. They can't talk about the lockdowns, the total (inaudible) anticipated and that shut down 3.3 million of our businesses.
President Trump said he was going to run our country like a business like he is that Anthony Fauci, our businesses shut down 3.3 million businesses, shipped in $4 trillion from the American middle class to a new oligarchy of billionaires and now -- and like generous (ph) wars. All of these issues are really existential issues for our country. And each one of these represents their own part in driving those issues to crisis. I'll tell you, most Americans don't want to say.
SMERCONISH: Well, it might be those issues -- it might be more of those issues. But I think it's the polls, and they just view you as a wildcard. And between them they can't decide from whom you pull more, and therefore it's easiest not to have you on that stage.
Let me ask you this. Right now, you're not consistently at 15 percent, although these seem to be getting there, and you're not on enough ballots to get to 270 electoral votes. On that basis, is it a legitimate means of keeping you off the stage?
KENNEDY: First of all, all the legitimate polls, including polls that CNN says that it's going to rely on, we do hit 15 percent. The polls that don't have a 15 percent are asking the questions in a deceptive way that suppresses by the perceived support that we have. The Monmouth poll, the Quinnipiac poll, the CNN's own poll has made 15 percent this past month. The "New York Times" CNN poll (inaudible) where we have six major polls that show be accurate by 15 percent.
The other thing is, I'm going to be on the ballot. And 340 enough states that we had 40 electoral votes. That's one of the criteria. Neither President Trump or President Biden is going to be on the ballot in any states at that time. I think CNN made tactical error, because they basically made a criteria that President Trump and President Biden get paid (ph). The parties are on the presumptive nominee, they don't have this nomination yet, so they're not going to be able to get on the ballot.
SMERCONISH: In other words, you're saying as a technical matter, the parties will be given valid access but they've not yet formally secured their party's nomination because there hasn't been a convention?
[09:10:05]
KENNEDY: Yes. I'm the only one who thinks we can that will qualify for that criteria. So CNN, you know, has made a criteria that I don't -- you know, like on that only one that could qualify for it.
SMERCONISH: Is there any recourse that you're going to pursue?
KENNEDY: Well, we have a legal recourse if CNN denies us. You know, CNN, there's plenty of court cases that say, once you make an open challenge, like CNN did, and you publish criteria, you have a contract with people who can meet that criteria. And so, you know, we do have a contractual. There are -- Michael, there are -- we have fare structure in this country that governs the television networks that says that you have to give equal time, that there's no proximate cause of action for us to enforce that fare structure.
SMERCONISH: Bobby, I think that went out in the Reagan years. I mean, I came of age as a broadcaster as that was waning. I don't think that applies.
But by the way, I understand you're upset with CNN, because CNN is hosting the first one. But it really seems like the fix was in between Trump and Biden. And some network, if not this one, some network was going to quickly snap it up.
KENNEDY: Yes, I think President Biden particularly does not want to see me on stage. President Trump says that he is happy to have me there if I meet the criteria. So you know, I -- by the way, fare structure (ph) is the aspects of it that require equal time are still in place, most of the fare structure (ph), right, was abandoned during the Reagan years. But those aspects are still legal requirements. They do have to give equal time.
Look, there is no private right of action (ph).
SMERCONISH: Thank you so much for coming back and being heard on this issue. I appreciate it.
KENNEDY: Thank you so much for having me. Good to see you this morning, Michael.
SMERCONISH: You too, Bobby. Thank you.
(END VIDEO CLIP)
SMERCONISH: OK. Coming up, by now you've heard about the upside down flag flown outside the home of Justice Samuel Alito, that's what's inspired today's poll question@smerconish.com. I'm asking this, should the spouse of -- should the spouse of a Supreme Court justice, a spouse now, have to limit their personal political speech? Go to smerconish.com and cast your ballot. I'll give you results later in the program.
Up ahead, the jury could have the Trump hush money case next week. So, how does Michael Cohen's shocking testimony on Thursday change things for the prosecution? Make sure you're signing up for my newsletter when you're voting you'll get editorial cartoons like this which was drawn by Jack Ohman.
(COMMERCIAL BREAK)
[09:17:30]
SMERCONISH: Michael Cohen, the key witness, former Trump fixer, will be back on the stand Monday morning as the defense wraps up its cross examination in the Trump hush money criminal trial. There's a critical blow to Cohen's testimony on Thursday when the defense grilled him over in October 2016 phone call that he had with Trump's body man. Cohen testified under oath that the call was about payments made to Stormy Daniels. The jury was later presented with evidence of text messages between Cohen and Trump's body man from that exact day, proving their conversation was centered around a prank and harassing telephone calls that Cohen was experiencing.
Joining me now is Elie Honig, the former federal prosecutor and CNN Senior Legal Analyst.
Elie, we both get so far into the weeds on this. But let's give the stand back explanation. Page 3894, I'm going to put it up on the screen right now of the trial testimony was that critical piece of cross examination. What's the takeaway?
ELIE HONIG, CNN SENIOR LEGAL ANALYST: So, Michael, the reason that this moment right here was different from what we've seen before is because it goes to the core credibility of the core witness, Michael Cohen, on a core aspect of this case. Up until now, all the cross examination of Michael Cohen had focused on the fact that he had this long history as a liar, that he had this personal hatred towards Donald Trump, all of which is irrelevant, but none of which went to the actual payments at issue here. This piece of testimony by Michael Cohen, he got on the stand on direct when being questioned by prosecutors a few days ago, and he said, there was this call 8:02 p.m., October 24 2016, and that's where I told Donald Trump the Stormy matter had been resolved. That was the purpose of that call.
OK. Fast forward a couple of days to cross examination. And it turns out, there's a whole text chain right before and right after that call that shows the purpose of the call was that Michael Cohen was getting harassed by this 14-year-old over text and Michael Cohen wanted to essentially sic the Secret Service on her. And Cohen was on his heels when he got hit with that. And he tried to spin and say, well, maybe we discussed both things, or maybe it was some other time.
The problem is that's not what he said on direct. That's not what he said to the grand jury. It's a major problem for his credibility.
SMERCONISH: So Anderson Cooper was in the courtroom when it happened. I was watching CNN that night. There was a surreal moment, you were on camera. Anderson now comes online and explains what it felt like in the courtroom. Let's watch.
(BEGIN VIDEO CLIP)
ANDERSON COOPER, CNN ANCHOR: You could tell the import of the moment and everybody in the courtroom can tell. And if you were unaware of it, the clicking of every reporter in the rooms typewriters, it was like a crescendo because the drama of the moment was so clear to everybody in the room.
[09:20:08]
I think it's devastating, I mean, from Michael Cohen's credibility on this, I mean, in this one particular topic.
(END VIDEO CLIP)
SMERCONISH: I found that really significant because, you know, I'm sitting at home or in my studio, and I'm reading the trial transcripts, it's hard to know how it played. That seems to have played, Elie.
HONIG: I had the same reaction, Michael. I was covering the case for CNN. And we're relying on the dry feed that you all see on your T.V. screens on the side where you get text, little updates that pop up. And as it was happening, I said, well, this seems to me like it's very significant. But you don't know how it's playing in the courtroom.
Anderson came out and gave us his take, which was very similar to what we heard minutes later from Kara Scannell, one of our reporters from a retired New York judge who has been coming out and giving us interviews, and to me, that tells a lot. And by the way, when a core witness gets blown up like this in such spectacular fashion, even if it's only one part of his testimony, that can resonate with the jury so powerfully. They will be instructed by the judge probably later this week, that if you find that a jury lied to you, in part of his testimony, you have the right, you don't have to, but you have the right to reject his testimony wholesale. And so I think that's what I'd be worried about as a prosecutor now.
SMERCONISH: OK, give me -- give me the 32nd answer to this. I'm putting on the screen what my friend, Lanny Davis says is the retort. It's the quote unquote, "smoking gun," Allen Weisselberg notation, Lanny says, you can remove Michael Cohen from the equation, the documents, the documents, the documents, especially that one. And you would say what, Elie?
HONIG: That document is an important and powerful piece of prosecution evidence, but it shows exactly why you cannot make this case without Michael Cohen. The handwriting on those documents, there's two documents that are similar, come from a combination of Jeffrey McConney and Alan Weisselberg, the accounting people at the Trump Org. The person who links those notes, and that whole construct, which is the crime and the case, the accounting of the case, which is the crime is Michael Cohen. If you take Michael Cohen's testimony out of this case, if you remove it, there is no way to make this case. The jury, if they do make the decision, they can't trust Michael Cohen, they should not be able to return a guilty verdict.
SMERCONISH: Elie, thank you for that. You're doing a hell of a job. I appreciate you being here.
HONIG: Thanks, Michael. Appreciate it.
SMERCONISH: One of the biggest mysteries in this case right now, what exactly is the felony that Trump is being charged with? I talked about exactly that issue on my SiriusXM radio program this week. It earned me a name check by the former president.
(BEGIN VIDEO CLIP)
DONALD TRUMP, FORMER PRESIDENT OF THE UNITED STATES: Even Michael Smerconish of CNN, a person four or five weeks into a trial or to be told exactly that which they're being prosecuted for. And that hasn't happened. You know why it happened? Because it didn't happen for one of the very simple reason, because there is no crime.
(END VIDEO CLIP)
SMERCONISH: Joining me now is Jessica Levinson, a professor at Loyola Law School who teaches election and campaign finance law. She also hosts the "Passing Judgment," podcast. Professor, thanks for being here. The prosecution is a two-step, you know, falsification of business records, and then presumably an election law violation. What is the election law violation?
JESSICA LEVINSON, PROFESSOR, LOYOLA LAW SCHOOL: So, we think because the prosecution has mentioned this, that it will be a New York State violation, which we should note is interesting here, because we have a federal candidate, a former federal candidate, but briefly, we think that the New York State election is one that deals with people entering into a conspiracy to try and undermine the election to try and promote one candidate or hurt another candidate through unlawful means. And if that sounds complicated, I think it might be for the jury.
One thing you mentioned in the introduction that I just wanted to say is that that New York case, that New York code that we're looking at is the second crime, that itself could also be a misdemeanor. So you could have misdemeanor plus misdemeanor equals a felony in this case.
SMERCONISH: Professor Levinson, do you think this increases the importance of the two attorneys who are on that jury? Because this is complicated stuff? And might therefore other jurors be looking to them for a little guidance in a way they otherwise would not have?
LEVINSON: Absolutely. And I think that's why both sides kept them on. So, this is a fascinating case. It's a complicated case, because as you know, it takes us a few minutes to describe it. And the longer it takes, and the more sentences it takes for us to describe it, the more complicated it is for the jury. You can't just say A to B, you have to say A to B to C and then ultimately we get to D. So I think what the prosecution is hoping is that those lawyers will be basically a proxy for them saying, I know it's complicated but bear with me.
[09:25:05]
First falsification of business records. Second intent to commit or conceal another crime. Third, here's that other crime. I think for the defense, they'll say, this is really -- they're hoping that those attorneys will say, this is really complicated. Let me show you all of the potential pitfalls with this strategy.
SMERCONISH: I was named checked by him. And you know what he does, right? Because of the gag order, he gets fed information. And when he walks out of court, he reads things aloud. I guess that appeal to his opinion, I was simply saying on radio that I'm a civil litigator from Philadelphia, I don't understand how you get to this stage of a trial without some clear articulation of what the charges are that someone is facing. Respond to that.
LEVINSON: So, my response is, I think it's extremely frustrated for -- frustrating for us as members of the public because we can't just say it's definitely this. It's definitely the New York election code or it's definitely federal election law or the third potential bucket. It's definitely state tax law. But inside the courtroom, and in terms of notice for the defendant, the prosecution has done enough here. They have had motion practice before the trial. They said we think it's for potential crimes.
The judge before the beginning of trial said, you can point to three potential crimes. The prosecution in oral arguments -- excuse me, in the beginning of arguments said, we think we're going to point to and they said, this election code. For me it feels extraordinary, because it's this case that's taking on so much weight, and we're still thing we think it will be this violation. But in terms of what's happening in the courtroom, in terms of notice for the defendant, all of the legal hurdles have been satisfied.
SMERCONISH: Professor Levinson, thanks so much for the expertise. Greatly needed by all of us.
LEVINSON: Thank you.
SMERCONISH: I want to remind you, go to my website smerconish.com. This hour vote on today's poll question obviously inspired by the Alito flag flap, should the spouse of a Supreme Court justice have to limit their personal political speech? I'll give you results at the end of the hour.
Here's some social media reaction thus far from the program. What do we have?
From the world of Twitter, Cohen testimony eviscerated defense. Team Trump should prepare.
Cohen testimony eviscerated the defense? Wow. OK. Really? Even after what happened on Thursday?
Here's what I think about the Cohen testimony as I'm, you know, reading from the sidelines. I won't be surprised if when it ends, no matter how it ends. There are interviews done with a juror or jurors, if they choose to speak, who say, you know what we got behind closed doors, and the Cohen testimony was a wash. And we made our decision and we rendered a verdict based only on that which came from other sources. That's the one prediction.
I'm not going to predict whether there's a hung jury or whether there's, you know, a guilty verdict. But I feel pretty confident that's the way it's going. And then it begs the question, is there enough to get home by the prosecution without Michael Cohen's testimony? My two cents.
Up ahead, will the upcoming presidential debates make it easier for Biden to win a second term? My next guest, Mark McKinnon is here to make that case.
Make sure you're signing up for the smerconish.com daily newsletter, you'll get exclusive content. I mean, come on. Look at what Steve Breen drew for us this week. Does that not summarize the immigration debate, at least according to some?
(COMMERCIAL BREAK)
[09:33:19] SMERCONISH: Former president Trump mocked President Biden last night at a Minnesota rally says he's ready to debate him. Joining me now is Mark McKinnon, former adviser to President George W Bush, the late Senator John McCain as well, and creator of Paramount's "The Circus." His recent piece for "Vanity Fair" is called "Why Biden's Debates With Trump Could Be His Meal Ticket."
Great to have you back, Mark. So, I get it. I agree. A bold move by President Biden. How risky for President Biden?
MARK MCKINNON, FORMER ADVISER TO GEORGE W. BUSH: Oh, it's a huge risk. Listen, it could end the campaign. It could be a complete meltdown.
I mean, the good news for Democrats, it might be a meltdown early enough that you could switch things out the convention. But I look at this from a, you know, with a strategist hat and who has kind of been in this position before in 2004 specifically working for George W. Bush and his reelect. And he was -- his approval was well below 50 percent.
He's, you know, deep in the Iraq war. His policies were unpopular. And the last thing he wanted to do was to debate. But we had to say, Mr. President, listen, you've got to make this a referendum on the other guy.
So, the options for team Biden were don't debate, and that's not -- that's not sustainable, that's not an option. If he doesn't debate, he loses this election. He is right now losing to Donald Trump. And so, if you're a clear-eyed strategist you'd say, we've got to change this equation. And the best opportunity to do that is to get on stage with the guy. If you want to be the man you got to beat the man.
And by the way, the other thing, Michael, is that the most important perception of a candidate running for president is the perception of strength. Or the biggest problem is the perception of weakness. That's Biden's biggest problem right now. A lot of that, of course, is age- related.
But the way that you fix -- I mean, you can't get younger in the next six months, but you can get on stage with Trump and show that you've got the stamina and the mental acuity to stand up to him on stage.
[09:35:11]
SMERCONISH: In my opening commentary, and you and I see this very similarly, I said that I thought that Trump had been out negotiated. And at the top of the list of concessions that I think he made, giving up an audience that's his oxygen hose. You put Donald Trump in a sterile box, it's not like putting him in front of 80,000 people in Wildwood, New Jersey.
MCKINNON: That's exactly right. And that's another reason why this was so smart for the Biden campaign. I mean, the other option would be just wait for months, do the usual thing where you just let Trump bang on you for three months about anywhere, anytime, anyplace. And then finally, given -- debate in September and just cave, this way you do it on your terms and he got -- he got the -- he got the platforms that he wanted. He wants the rules that he wanted. I think in a lot of ways, of course, I'll never admit it that it cut the Trump campaign flat-footed. And I think that he would like to have negotiated some of these terms. But right now, you know, Biden is going to debate and he's going to do it on his term.
SMERCONISH: Hey, Mark, will you say a word about the expectation game? I think that Trump has so lowered the bar for Biden he has made it easy for it to be exceeded.
I note that in Minnesota last night he said he wants them to be drug tested. So maybe he's trying to plant a seed that if Biden does well, well, you know, somehow, he is drinking Red Bull or some such thing. I don't know. But the expectation importance, address that.
MCKINNON: A hundred percent, Michael. Debates are all about expectations. They're not forensic debates like you do in college where you're graded on points. It's all about the expectations.
And right now, as the table is set the expectations are very high for Donald Trump and they're very low for Joe Biden. And so, as a strategy what you want to do if you're Trump is to say, you know, Biden is the greatest debater since Cicero. You what -- you want to raise the expectations on him, not lower him which Trump has done.
And by the way, that drug testing thing is the first signal that maybe Trump is looking for a way out of the debate himself or find a way to renegotiate the terms.
SMERCONISH: Mark McKinnon, always great to have you. Thank you.
MCKINNON: By the way, Michael, as a small d, democrat citizen Mark McKinnon, I, of course, would like to see everybody on the stage, including Stan Powers.
SMERCONISH: Thank you for name checking the protagonist in my novel "Talk." Up ahead, Supreme Court Justice Samuel Alito is taking heat for the flag and how it was flying outside his house namely upside down, that brings us to today's poll question at Smerconish.com.
I have no idea how this is going to turn out, which is why I love it. Should the spouse of a Supreme Court justice have to limit their personal political speech?
And tonight, right here on CNN, join us for an intimate look at the pioneers inspired to help humanity and transform society for the best. I'm talking "CHAMPIONS FOR CHANGE" which airs tonight at 9:00 eastern only on CNN.
(COMMERCIAL BREAK)
[09:42:33]
SMERCONISH: Senate Judiciary Committee Chair Dick Durbin, calling for Supreme Court Justice Samuel Alito to, quote, "Recuse himself immediately from cases related to the 2020 election and the January 6th insurrection, including the question of the former president's immunity in U.S. v. Donald Trump, which the Supreme Court is currently considering."
This comes after "The New York Times" reported an upside-down American flag was found hanging outside the Virginia home of Justice Alito just a few days before Biden's presidential inauguration in 2021. This inverted flag is used as a symbol by some Trump supporters who challenged the legitimacy of Biden's victory. It has become a recurring prop of the Stop the Steal movement.
The photo was captured by neighbors. It's unclear how long the flag was flown outside of the justice's home. But in a statement to "The Times" Alito said, quote, "I had no involvement whatsoever in the flying of the flag. It was briefly placed by Mrs. Alito in response to a neighbor's use of objectionable and personally insulting language on yard signs."
Fox News host Shannon Bream revealed in a series of tweets that a neighbor of the Alitos reportedly had an F Trump sign within feet of where children wait for the school bus. Mrs. Alito brought this up with the neighbor who then replaced it with a sign personally addressing Mrs. Alito and blaming her for the January 6 attacks.
Things escalated further. Justice Alito said, at one point, the neighbor engaged in vulgar language directed at Mrs. Alito including use of the C word. Justice Alito claims the flag was his wife's response to these very personal and political attacks.
Last fall, in response to the public scrutiny, the Supreme Court took on a code of ethics for the first time. This code requires justices to refrain from political activity.
Joining me now is Hofstra law professor and judicial ethics expert, James Sample, who has testified before Congress on Supreme Court ethics. Professor, thank you for being here. When does the conduct of a family member trigger a judicial or in this case justice's recusal?
JAMES SAMPLE, HOFSTRA LAW PROFESSOR: It's good to be with you, Michael. I think that the question is not the question that you have framed in your poll. I think that the question is not whether or not spouses need to refrain or be prohibited -- or should they be prohibited from political activity. The question rather is the one that you just posed, which is to say, when spouses of a justice or a judge engage in political activity, what are the consequences for due process and the appearance of impartiality when the judge or justice then rules on those very same matters?
[09:45:13]
If Ginni Thomas or Mrs. Alito wants to engage in political speech, they're entirely free to do so. But when those matters come before the court particularly when they are very specific, like Ginni Thomas' efforts in the January 6 insurrection and the facilitation of false electors, like this new scenario, which is obviously still developing and we don't have all the facts, but should Samuel Alito, when he's home, he can say after the fact as he has, he can throw his wife under the bus if he wants, but that's a jointly owned home.
If you're a neighbor walking down the street, you don't perceive that as Mrs. Alito's political speech. You perceive that as political speech displayed at the home of the Alitos, plural.
SMERCONISH: OK. So, are you therefore saying in this case he should recuse?
SAMPLE: There's no question that it is a close call and that there are reasonable arguments to be made that he should. There's a federal statute on point. Set aside this code that the Supreme Court adopted in November really as a public relations effort that code is more loophole than law because the members of the court steadfastly refused to include an enforcement mechanism.
But Congress has a statute on point, 28 USC section 455. It says, whenever a judge's impartiality might reasonably be questioned, that's the key phrase. Whenever the judge's impartiality might reasonably be questioned, they shall, mandatory language, disqualify.
In the case of Clarence Thomas ruling on January 6 and 2020 election- related cases, it's a slam dunk, it's unequivocal. He absolutely has to recuse, but he has not. Unfortunately, his refusal to do so has created a kind of quasi precedent that creates cover for the closer call scenarios, like we have with Justice Alito.
Will Justice Alito recuse? No. He will not.
SMERCONISH: I get -- I get that the flagpole is a complicating factor. Like if -- if presumably they drive separate cars and she has a bumper sticker on hers I don't think we'd be having this conversation about holding him accountable. Maybe you feel differently.
But you look at the flagpole and I understand what you're saying. It's -- it's the marital home and therefore you suspect that must be a statement each has been making. There it is. We're showing it on the screen.
But you heard the justice's explanation and that provided via communications with a Fox host and he says, look, this was a tit for tat taking place with one of the neighbors. I had nothing to do with it.
SAMPLE: I mean, his -- after the fact justification and is after the fact blaming of his spouse aside, there are really only two possibilities here, Michael. Possibility one is that this was intended as a -- as a trivial -- this is a neighborly dispute and the Alitos are devolving and lowering themselves to a standard of pettiness that should be beneath the dignity of the court. That's possibility one.
Possibility two is that this is a meaningful political symbolic gesture about a very controversial matter that was very likely and did, in fact, ultimately come before the court. And in that scenario, there's a real question as to whether or not Justice Alito can be fair.
SMERCONISH: I don't agree. No --
SAMPLE: We don't find it credible --
SMERCONISH: -- I have to say, I don't -- I don't agree. I don't agree. There's -- there's choice three, which is taken at face value that some neighbor puts up an F Trump sign at a school bus stop and then -- and then calls her the C word. And this was the response without regard for embracing and endorsing what transpired on January 6th. You get the final word, just make it 20 seconds.
SAMPLE: Well, I think, that it's -- it's generous to take the word of a Supreme Court justice when that same Supreme Court justice has engaged in all sorts of failures of disclosure on the conflict of interest rules. I don't think Justice Alito here gets the benefit of the doubt and neither does the law, neither does the statute that's on-point.
SMERCONISH: Right. But if the facts are that these other activities were taking place in the neighborhood, I think, it swings that pendulum at least back to the center line. I do appreciate you. Thank you for being here.
SAMPLE: Thank you.
SMERCONISH: The professor does not like my poll question. I hope he'll, nevertheless, vote on it and that you will as well. Should the spouse of a Supreme Court justice have to limit their personal political speech? When you vote, sign up for the newsletter. It's free and it's worthy, and you get editorial cartoons from the legends. Check this out from Rob Rogers.
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[09:54:27]
SMERCONISH: All right. That's where things stand as of now. Whoa. You know, I don't like round numbers. I'm always suspicious of round numbers but OK.
Should the spouse of a Supreme Court justice have to limit their personal political speech? Thirty thousand plus voters. And it's running 70, 30. I guess in a -- a note to Mrs. Alito.
Here's some of the social media reaction that has come in so far. What do we have?
Justices' wives, like all family members, should use discretionary wisdom with their social involvements. Rules need not replace common sense.
Yes, I get it. But like, what if it weren't the wife?
[09:55:01] What if it were, you know, the 17-year-old doing something goofy but with political implications? I don't think you'd say that that's going to -- that's going to be something that would necessarily impact the justice, whomever the justice might be. I think it's a tough case. She's got a political right to speech. You would think commonsensically that she would realize, this is going to put my husband in a hell of a tight spot.
More social media reaction. What do we have?
Sorry, Mike. Question today misses the issue. It's not about her. He lives under that roof and optics are clear.
OK. Well, David, are you married? Do you have a partner? And what? You think that the partner can necessarily control the situation? If it played itself out in my house, I'm not so sure what the flag would look like or if I could control it.
More social media reaction. What do we have? Real quick.
I keep -- hope the debates will happen. The Biden handlers will keep adding impossible to do stipulations --
I want to see debates. But I think Bobby ought to be on that stage if he's at 15 percent. Thank you so much for watching. I'll see you next week.
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