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Smerconish

WSJ: Behind Close Doors, Biden Show Signs Of Slipping; What Will Happen If Biden Decides To Leave The Race; Biden Disastrous Debate Sends Reelection Bid Into Crisis; Political Impact On National Polls After First Presidential Debate; SCOTUS Ruling On Trump Immunity Case Expected On Monday; Supreme Court Limits Obstruction Charges In January 6 Rioters Case. Aired 9-10a ET

Aired June 29, 2024 - 09:00   ET

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

CLEO NAGBE, RALPH'S MOTHER: I hope you get to be all that you dream to be.

(END VIDEO CLIP)

VICTOR BLACKWELL, CNN ANCHOR: I mean, if you consider all that that young man has gone through just simply going up to the front door and being shot because he was in the wrong place using this platform nationally, to then help another student. To Ralph Yarl, Isabella Peters, and all the Casey scholars, I see you.

Thanks for joining me today. I'll see you back here next Saturday at 8:00 a.m. Eastern. And Smerconish is up next.

[09:00:38]

MICHAEL SMERCONISH, CNN ANCHOR: Robert Hur warned us. I'm Michael Smerconish in Philadelphia.

Thursday night was not just another poor first debate performance by an incumbent president ala Reagan in 1984 or Obama in 2012. They both rebounded from rust. Nor was it akin to President Ford who offered a single poor response about Soviet domination of Eastern Europe, or papa Bush looking at his watch. In other words, this was not a one off. Instead, what ails Joe Biden cannot be fixed, and eventually it comes for us all.

Before the debate, I said that delivery would matter more than substance. Meaning, how things were said would matter more than what was said. After the debate others confirmed my prognostication including the Washington Post editorial page, which wrote, "this debate may not be remembered for what was said, but rather for how it was said." The part of my prediction that was wrong was in thinking that Trump and his enablers had so lowered the expectation bar for Biden that he could easily exceed it. He didn't.

Trump littered the debate stage with falsehoods. CNN counted 30 to Biden's nine. On any other night that would be the takeaway. But this time, all anyone will remember is Biden's befuddlement. And rookie mistakes were made by the political veteran calling into question not just his acuity, but his debate preparation. Was he unaware that he'd be on camera even when not speaking? Or did they tell him so only to have him forget?

In all of those closed door sessions at Camp David, did they roll any tape? Did they show him what he would look like on a split screen? Either it was a bad look that reinforced either way it was a bad look that reinforced the concerns that have been noted in countless polls for the last year.

David Wasserman of The Cook Political Report tweeted this, "This debate making abundantly clear that Biden's insistence on running for another term, when 66 percent of voters in our swing state polls believe it's likely he won't be able to finish a second term has gravely jeopardized Democrats prospects to defeat Trump." It was the earliest debate in our recent history for a reason. It was team Biden's idea to end run the Commission on Presidential Debates. Why? Because he needed a reset where national and battleground polls have consistently shown him trailing Trump.

Biden didn't want that narrative to cement over the summer, only to have people return in September when voting will immediately be underway. Gone are the days when Labor Day marks the start of the fall campaign, not in an age of mailing early balloting. Seen this way, the debate, it was a bit of a Hail Mary by Biden. And it was a battle fought according to Biden's rules.

First, his insistence that there be no RFK Jr. Left to the Commission framework and timetable, Kennedy would arguably have fulfilled the requirements to get on the debate stage and he still might for September. Second, no audience, third muted mics, and to boot, two commercial breaks providing a respite. So eager was Trump to get Biden on a debate stage that he readily agreed to those terms. And in the end, that framework benefited Trump more than Biden.

Trump's speech was untethered as usual. But his body was measured. He was not the candidate who looked over Hillary nor the candidate who interrupted Biden in 2020. Biden at times, was just lost.

(BEGIN VIDEO CLIP)

JOE BIDEN, PRESIDENT OF THE UNITED STATES: We have 1000 trillionaires in America -- I mean, billionaires in America. And what's happening? They're in a situation where they in fact, pay 8.2 percent in taxes. If they just paid 24 percent or 25 percent, either one of those numbers, they raise $500 million -- billion dollars, I should say.

Making sure that we're able to make every single solitary person eligible for what I've been able to do with the COVID -- excuse me, with dealing with everything we have to do with -- look, if -- we finally beat Medicare.

JAKE TAPPER, CNN HOST: Thank you, President Biden.

(END VIDEO CLIP)

SMERCONISH: Watching President Biden, I thought of Special Counsel Robert Herr, who determined that Biden had classified information, knew it, shared it, but still did not recommend criminal charges. Why not? Because Hur did not believe he could prove Biden's requisite intent and that's why he said Biden would present himself to the jury as a sympathetic, well-meaning elderly man with a poor memory. Those revelations went to the likelihood of success if the case were ever to be tried, and that's a proper framework for evaluating potential wrongdoing, notwithstanding that a sitting president cannot be indicted.

[09:05:25]

Well, you remember, the President's supporters they hauled, they said it was gratuitous. But now we've seen what Hur saw, and so has the "New York Times" editorial board, they are calling on President Biden to leave the race. Here's part of what they said, quote, "As it stands, the President is engaged in a reckless gamble. He understood that he needed to address long standing public concerns about his mental acuity, and that he needed to do so as soon as possible. The truth Mr. Biden needs to confront now is that he failed his own test."

The fact that the "New York Times" editorial page has asked President Biden not to run is huge. It's the modern equivalent of Walter Cronkite editorializing about Vietnam, which led LBJ to recognize that he had lost Middle America. There are certain underpinnings to Democratic presidents viability. Cronkite was one for President Johnson, the "New York Times" editorial page is one for Biden and the Democratic establishment. And based on the "Times" logic, it's also a moment when senior Democratic leaders, those in governor's mansions and in the Congress, need to quit their conspiracy of silence about their president.

Their obligation to their country is greater than their discomfort in calling it as it is.

Here's what I said on X last night, "There is no recovery for Joe Biden from the "New York Times" editorial. I doubt he'll be the nominee. I say that with no glee. It's just the reality of the influence the Gray Lady still holds over those Biden needs the most. Donald Trump may have just won the battle and lost the war."

And here's what I meant, with 51 days to go until the Democratic convention will Joe Biden relinquish the Democratic nomination to a stronger candidate? Beyond Vice President Kamala Harris, the Democrats have a deep bench, Gavin Newsom, Amy Klobuchar, Gretchen Whitmer, Wes Moore, Josh Shapiro, Pete Buttigieg. Poll say that America is largely disgusted with the current choice between these two. Well, here's a chance for a fresher face to catch lightning in a bottle. A contested Democratic National Convention is nothing to fear.

It would be a dynamic and captivating several days in American history. The person who came out of that process with the nomination would have enormous momentum, and would be a far different candidate in terms of their evident abilities far in excess of the way we look at each of them today. And that includes Vice President Kamala Harris, if she were able to convince the delegates to support her. With competition, it would only be because she was compelling, and the country would get to see that that she would win the nomination.

In the alternative, the President's sense of patriotism might give way to perceptions of selfishness. The "New York Times" Thomas Friedman is said to be among the President's favorite columnists. He said the debate made him weep. And he wrote this, "Joe Biden, a good man, a good president has no business running for reelection." The headline, "He Must Bow Out of the Race."

Joe Biden's place in history is secure as the person who denied Donald Trump a consecutive second term. But that might come with a footnote if he's the person who enables a Trump return to the White House.

I want to know what you think. Go to my website right now at smerconish.com. Answer this question, should the Democratic nomination be determined by a contested convention?

Some have been sounding the alarm on this long before the debate was even on the books. Earlier this month, the Wall Street Journal's Annie Linskey co-authored a piece based on interviews with more than 45 people over several months and titled "Behind Closed Doors, Biden Show signs of Slipping," doesn't get more straightforward than that. Yesterday, she co-authored a follow up, "The World Saw Biden Deteriorating, Democrats Ignored the Warnings."

White House reporter for The Wall Street Journal Annie Linskey joins me now.

Annie, I'm going to put up on the screen the lead for your most recent reporting. I'll read it aloud and then have you summarize the new story. You say with regard to the President's overseas trip, "Officials said that Biden's performance and focus can vary significantly between meetings and even within a meeting. Two senior European officials cited a European Union U.S. summit in October in Washington at which Biden struggled to follow the discussions. Both said he stumbled over his talking points at several moments, requiring Secretary of State Anthony Blinken to intervene and point out the lines he should use."

[09:10:00]

Summarize your most recent reporting. What do you have?

ANNIE LINSKEY, REPORTER, THE WALL STREET JOURNAL: Yes, thank you. It's great to be on. I appreciate it.

And, yes, we have a piece on the front page of today's Wall Street Journal that looked at some of Biden's most frequent foreign trips and its interactions with diplomats from around the world. In a way, we've been really interested in how Biden import himself in these small closed doors meetings, largely because the White House has said to us repeatedly and said to the world repeatedly that, look, if only you saw the Joe Biden we see behind closed doors, he has sharp as a tack. I think one White House spokesperson even said that he is sharper than ever when behind closed doors, and that really launched in an effort by my news organization to try to find what are these moments behind closed doors. And so was recently, some of my European colleagues were able to work with our sources. This is an effort that really got in earnest after the debate, this second piece of the story, and they were able to talk to some of their sources who've been with the President in some of these diplomatic meetings with world leaders, and some of them -- some of the participants have walked away quite concerned.

SMERCONISH: So, when you wrote on this subject with your colleagues on June 4, Republicans were on the record, Democrats were not, the White House then said essentially, this is a partisan hit job. What's the situation? Are there Democratic sources who feed you this information, but don't want to be known? Or is it only coming from Republicans?

LINSKEY: Well, the story that we initially wrote, relied mostly on Republican sources. But the anecdotes that were in the story were supported in, many cases, by Democrats on background. Look, if you're a Democrat in this party talking about the President's age is -- I mean, you know, saying it's touching the third rail is sort of that wouldn't be as kind of a spa day compared to what you're going to get. So, there is absolutely no incentive, particularly before the debate for any Democrat to say anything about the presidency. And it's been a topic that is radioactive.

So I think the expectation that a Democrat is going to stand up to their party and explain what they're seeing behind closed doors in a candid way is, I mean, that's was a bar that we were unable to cross in that story. I wish we had. Now, did we talk to Democrats? Did we hear from Democrats who said, yes, this is what we see, too. Yes, of course we did.

SMERCONISH: Annie, do you think the debate changes that? Do you think the "New York Times" editorial that I referenced in my opening commentary changes that and gives cover to Democrats to now go on record telling you the things they've said privately?

LINSKEY: I think so. I mean, I think there's -- I think there's a hesitation for Democrats to be seen in this moment as piling on with the president. I think there's other way people have described it as this is a very fluid period. You know, there's a tremendous amount of party loyalty, there is a -- I feel that the Democratic Party is very much bound together by this fear of Donald Trump returning to power and there has been a reluctance to, you know, be candid about some of Biden's drawbacks because of that. So I don't know.

I don't know -- you know, I can't speculate what they may do. I do know that we've just heard from a lot of sources who said, yes, that was right on and, you know, we're glad that you did the reporting and put it out there.

SMERCONISH: Annie Linskey from the Wall Street Journal, thank you for being here.

LINSKEY: Thank you.

SMERCONISH: So what would happen if President Biden were to drop out of the race? Elaine Kamarck joins me now. She is founding director for the Center for Effective Public Management and senior fellow for governance studies at the Brookings Institution. This is her area of expertise.

Nice to see you again. What would happen at the convention if the President were to say, I'm no longer your candidate?

ELAINE KAMARCK, SENIOR FELLOW, BROOKINGS INSTITUTE: Well, if it happened right at the convention, that would be really pretty chaotic. If it happened some weeks before the convention, you would find other people who want to be the presidential nominee, the Democratic Party, calling forth about proximately 4,000 delegates who have already been elected. Those delegates are absolutely Biden supporters. And -- but we don't know if Biden voluntarily took himself out. We don't know where those people would be.

There would be a scramble for their attention. If you could see candidates going to state delegation meetings, you could see candidates getting on shows like yours trying to make an impression publicly, people would watch the polls, there'd be a lot of attention to these candidates and ultimately they would have to convince somewhat -- somewhere in the neighborhood of 2,000 plus Democratic delegates to vote for them on a roll call vote.

[09:15:16]

SMERCONISH: Am I right that President Biden could not control those delegates currently pledged to him? He could make an endorsement if he chose, but he can't just say and here will be my successor?

KAMARCK: No, of course not. No, he can't -- he doesn't control them in the legal sense. Obviously, his view on who should be a successor will be very important, and will probably carry a lot of weight with a lot of the delegates who are dedicated to Joe Biden. I mean, I think the one thing we forget in this is that lots of people in the Democratic Party love Joe Biden. They've known him for years.

He's done things for them for years. They know he's a good man, and he's been a good president. So, you know, you're going to have a lot of attention to what Joe Biden thinks should he decide not to run.

SMERCONISH: Is there an impediment in getting on some state ballots at this juncture? Has that ship already sailed? If there wouldn't be a change in the Democratic nominee, do you get on the Wisconsin ballot?

KAMARCK: Oh, sure. Yes. Because people don't -- you're not on the ballot until the convention formally nominates you. So it's the formal nomination that puts you on statewide ballot. So at this point, there's no problem. And it's -- there's only a problem after the -- if somebody -- if a nominee would drop out after their convention.

SMERCONISH: OK. So, and we've had this conversation before, you've got to look at it in different blocks of time. There's the scenario of now through the convention, there's a totally different scenario if it's post-convention through Election Day. And frankly, if it's after Election Day through the inauguration, that's a third scenario.

KAMARCK: That's right. Three different scenarios. If for some reason, the president -- the nominee dropped out after the convention, then the Democratic National Committee would convene and select the nominee. Same thing, by the way, for the Republican Party. And if the nominee dropped out after the election, and before the Electoral College meets, you still have electors who are Democrats and electors who are Republicans, and they would get -- they would decide the replacement for the nominee. If the Democratic candidate or the president elect drops out after the Electoral College has met, then the Constitution finally kicks in, and the vice president elect will be inaugurated.

So it's three different scenarios. But up until Election Day, it really is in the hands of the political parties.

SMERCONISH: Elaine Kamarck, that was excellent. We thank you.

KAMARCK: Thanks for having me.

SMERCONISH: What are your thoughts? Hit me up on social media. I am on Twitter, now X. I usually rely on that during the course of the program. But I'm on all the platforms.

A little one sided aren't you, Michael? It's unbelievable that these two are the best either party can come up with to lead the country over the next four years. I don't get the part that says a little one sided, Wayne McKeever. The issue of the day, you might not like it, Wayne, is the president, the incumbent president's performance on Thursday night. And I think that that editorial today from the "New York Times" is a potential game changer, a wakeup call for the Democratic establishment, providing them cover to break what has heretofore been a conspiracy of silence to discuss the state of affairs.

And Annie Linskey from the Wall Street Journal just confirm for you that what gets -- said by Democrats behind closed doors comports with what we saw on Thursday night. And there's time to make a change. And that's what the opening commentary and segment was all about.

I want to know what you think. I have no idea how today's poll question is going to turn out. I just know it's a darn good one. Should the Democratic nomination be determined by a contested convention? Go to smerconish.com and cast your ballot.

Up ahead, more than 51 million tuned into Thursday's presidential debate. A CNN poll found that 67 percent of debate watchers say that Trump outperformed Biden with most saying they have no real confidence in Biden's ability to lead the country. So, how important was this first debate? What do past debates and elections tell us? Pollster Frank Luntz, who's concluded -- who has conducted presidential focus groups since 1996 said he's never witnessed one reaching a conclusion this overwhelming.

What does he mean? I'm about to ask him.

Make sure you're signing up for my free daily newsletter. It's great content and it includes exclusive political cartoons like this drawn for us by Steve Breen.

(COMMERCIAL BREAK)

[09:24:28]

SMERCONISH: How will Biden's poor debate performance impact the 2024 presidential election? 538 has been tracking polls from previous presidential election cycle since 1976. And in a recent ABC News 538 piece called "Why the Biden Trump debate matters more than you think?" The data finds on average. The first presidential debate shifts the national polls by 2.4 percentage points.

That number may sound small, but a 2.4 percentage shift for either Trump or Biden in any of the six battleground states could easily determine I'm in the winner of the 2024 presidential election.

[09:25:03]

Joining me now is pollster and communications strategist Frank Luntz. He has been conducting presidential focus groups since 1996.

Frank, nice to see you. Tell me about your focus group relative to this debate.

FRANK LUNTZ, POLLSTER AND COMMUNICATION STRATEGIST: Well, first thing and so the audience know how this process works, I hear your commentary and my year, I sit for 20 minutes, let me do this interview. You and I, I've never heard someone speak my words. I actually freaked out the control room because I said to them, I hear my own head echoing. You have a dead on, you have it perfectly. I've never complimented a host on air live.

Man, you understand this. The American people are frustrated with these two candidates. They do not want Trump and Biden running against each other. They do want to change. All the Trump people hate Joe Biden.

All the Biden people hate Donald Trump. There's only 4 percent that are truly undecided, which is why I think that you're going to see a smaller shift this time even though everyone says that Donald Trump won the debates. In our own focus group, the key moment is not that 12 went to Trump, one went to Biden in one state undecided. The key moment is not that they said to me that they didn't like Donald Trump, but they're afraid of Joe Biden, the key moments when they said and communicated that Joe Biden should not be running. They did so with respect.

They did so out of sadness. A significant number of people in that group voted for Joe Biden in 2020 and they said he's not the same guy now that he was then. And so what I don't understand and what I cannot answer, if average voters see this, what do the people who work for the president, who respect him and revere him and appreciate all that he's done what they don't see. And I know use the words behind closed doors with your interview. Here's the problem.

The American people start Donald Trump here, Joe Biden here side by side, they heard Trump's insults, they didn't like it, they heard Trump's asides, they were offended by it. But he completed senses, he completed thoughts. Maybe some of them weren't true, but they thought he still was presidential. And then they listen to Joe Biden, having trouble with simple sentences, having trouble completing his thoughts. And that's the power of focus groups to explain things that polls don't explain.

And what they saw was somebody who not only, and I'm going to use their words, not only is asking for four years, our group said can he even make four more months? So that's the way it is.

SMERCONISH: This conversation brings me no joy, notwithstanding your compliment, the whole discussion that we're having today. But better to have the conversation while there's time on the clock, right, than to not have the conversation at all. My understanding is that Frank Luntz still doesn't think that the horses are going to get changed, so to speak. Is that fair?

LUNTZ: I think that's -- it's -- right now, Donald Trump has 268 electoral votes on his side, and Joe Biden is somewhere in about the 220s. But there's still three states that are within the margin of error, Pennsylvania, Michigan, and Wisconsin. What this debate is going to do is to give Trump a lead in every one of the swing states, which gives him the presidency.

There was still time on the Democratic side to say, thank you, Mr. President. Thank you for all that you've done. Thank you for your legislation. Thank you for your leadership. But we need somebody else as the candidate against Donald Trump because I will say on the record, on your show, if things stay as they are, Donald Trump is the next President of the United States.

And the Democrats have to come to grips with that. And I say this, not as a Republican, not as a Democrat, as a pollster, the debate was so significant. Fifty-one million people watched. OK, viewership was down from 2020, but 51 million people saw the comparison. And two thirds of them chose Donald Trump. In our focus group, all the swing voters moved to Trump, that significant, the election will go to Donald Trump if the status quo holds.

SMERCONISH: Frank Luntz, thank you very much for your analysis. Appreciate it.

LUNTZ: Thank you.

SMERCONISH: Via social media more reaction, what do we have Catherine (ph)? You remember how everyone underestimated him in 2020? Until the people had the last word. Don't assume you know everything.

Ghania, I don't assume that I know everything. I'm not the person I was in 2020, four years ago. He's not the person he was four years ago in 2020.

[09:30:02]

As I said with no glee in my voice at the outset of the program, that which ails him doesn't get better. And eventually it comes for us all. That's what makes this different. Still to come, more of your reactions to Thursday's debate. Plus, the Supreme Court is expected to rule on Trump's immunity case on Monday. How will that monumental decision impact the former presidents' legal troubles and his third bid for the White House? CNN's senior legal analyst Elie Honig here.

Don't forget, vote on today's poll question. It's the issue of the day. Should the Democratic nomination be determined by a contested convention? While you're there, sign up for my free daily newsletter. Jack Ohman draws for us one day a week. Look what he drew this week.

(COMMERCIAL BREAK)

[09:35:27]

SMERCONISH: Hey, you can find me via social media in all the usual places, X, YouTube, TikTok. A lot of reaction today.

It's shameful that Joe Biden is letting his ego rule his decision to stay on the ticket. I'm surprised Jill allowed her husband to suffer in front of the world. I'm a lifelong Democrat and will be very disappointed if Joe Biden doesn't pass the torch.

I recommend to Nikki and to everybody else, read David Ignatius today from "The Washington Post" on that very issue. Remember, last September, he was one of the first to say, and again like -- you know, not someone who is trying to elect Donald Trump much to the contrary he was among the first to say that Joe Biden should not seek a second term. And in his reporting today, he says that Jill was irate at the column, that others were disappointed in he, David Ignatius, for writing it. But that Jill Biden was absolutely irate. And one wonders what kind of council she might be providing to him in view of this conversation.

Another social media reaction, if I might. What do we have?

Michael, I didn't see your poll suggesting should the GOP have an open convention to remove Trump. Perhaps I missed it.

Dennis Fountain, that's because Donald Trump will be the nominee and nobody is saying today that he imploded on the debate stage. I mean, come on. Do you really want to play that, that, that game of the yes, but, and what about them? If Donald Trump -- if Donald Trump had turned in the debate performance that Joe Biden did on Thursday night you can rest assure I'd be sitting here having a conversation saying to Republicans, are you sure this is the guy you want to put up? Because I am certainly not afraid to criticize both sides. I think that some of you are so unaccustomed to hearing the criticism of Biden that when you get it for me, it's like, oh, my God, where did this guy come from?

What we saw on Thursday night is what people have been seeing elsewhere for a long, long time. And I think, you know what I'm referencing. It's -- it's -- one last thought on this if I have time to say it. The criticism of me being willing to discuss it reminds me of the criticism of me entertaining guests from No Labels. You remember those days, well-funded, well-organized. In the end, they couldn't find a third choice. And people would say, all you're going to do is elect Biden. Why are you giving them air? Why are you putting on Robert F. Kennedy Jr.? Why this? Why that?

Stick your head back in the sand and you'll see what you get on November 5. And wouldn't you rather today if you had a No Labels choice? I'd bet you do.

Still to come, Trump's legal team expects to use the Supreme Court's January 6 ruling to get the former president's obstruction charges dismissed. Will they succeed? And how would a decision in the highly anticipated immunity case impact all of this? Our guy, Elie Honig, here to discuss. There he is.

And don't forget to vote on today's poll question at Smerconish.com. Should the Democratic nomination be determined by a contested convention? Sign up for the free daily newsletter while you're there. Scott Stantis draws for us one day a week. Checkout what he turned in after the debate.

(COMMERCIAL BREAK)

[09:43:05]

SMERCONISH: The Supreme Court will announce on Monday if former President Trump is immune from criminal prosecution. The landmark decision could have serious consequences for Trump's pending legal troubles and send shockwaves into the 2024 presidential race.

On Friday, the high court also ruled that the DOJ overstepped by charging hundreds of people with obstruction for storming the Capitol on January 6. The D.C. district court now reopening some of those cases. About 52 rioters were convicted and sentenced with the obstruction charge as their only felony.

Chief Justice John Roberts penned the 6-3 majority opinion alongside mostly conservatives and one liberal justice saying, quote, "Nothing in the text or statutory history suggests that the law is designed to impose up to 20 years imprisonment on essentially all defendants who commit obstruction of justice in any way."

Prosecutors can still file obstruction charges against rioters if they're able to prove the defendants tried to stop the arrival of certificates used to count electoral votes. Special counsel Jack Smith likely to continue to pursue the same charge against former President Trump.

Joining me now, Elie Honig, former federal prosecutor, CNN's senior legal analyst. So, Elie, we know this on Monday, this hot news cycle is going to take a major shift because finally we get the immunity decision. What are the possible outcomes?

ELIE HONIG, CNN SENIOR LEGAL ANALYST/FORMER FEDERAL PROSECUTOR: Yes. Michael, so we will get this on Monday. We can dispense with all the guessing games. There's three opinions left. This is the last opinion day. It's coming on Monday sometime 10:00 to 11:00 a.m.

Also, this is truly unprecedented. We love to say things are unprecedented. Usually, they're sort of precedented. We have no idea. This has been purely the stuff of law school hypothetical up until now.

Now, I do not think we are going to see a categorical win or loss either way. What I mean by that is I do not think the court is going to say criminal immunity does not exist. Therefore, Donald Trump, you lose. I do not think the Supreme Court is going to say criminal immunity does exist.

[09:45:01]

And it applies to you, Donald Trump. Therefore, you win and case over.

I think what they're going to do is announce, yes, there is such thing as criminal immunity. Here is the rule for how it applies. I think that rule is going to have something to do with whether the conduct was within the scope of the official job.

And then the big question is, does the Supreme Court say, and here's how we you apply this new rule to Donald Trump? Or do they kick it back to the trial court and say, now you have to hold the series of hearings and you decide whether it applies to Donald Trump?

SMERCONISH: Most importantly, for the 2024 cycle, Monday is July 1st. Do you see any scenario where he could go to trial in this case, the January 6 case?

HONIG: I do see a scenario, but it is narrowing and thin. The way that would have to happen is the Supreme Court would have to say, there is criminal immunity, but it does not apply to you, Donald Trump.

Therefore, back to Judge Chutkan, the trial judge. She would then get the case back in her court, essentially, as of early July. And she has said that she intends to give the parties about the same amount of time that they had on the clock when the case went up on appeal, which was just over two months.

So, if she wanted, she could theoretically try to schedule a trial to start in late August early September, but that is right on the cusp of the election. I don't know that a single district judge is going to have the nerve to say, well, we're going to take one of the two major presidential candidates and confine them to a courtroom eight hours a day in September and October of an election year. So, there's a possibility, but it's really narrow.

SMERCONISH: If it goes the way Elie Honig suspects, then how and by whom will it be determined whether Trump was acting within his official scope?

HONIG: So, that really is the million-dollar question because if the Supreme Court decides you were out of the scope, then it goes back to Judge Chutkan and she can proceed with trial. What I think is more likely is they're going to throw it back to Judge Chutkan and say, you have to hold the series of hearings. You have to make a determination. A, what's the scope of the presidency as it relates to an election? B was Trump within or without that scope? And C, a big question that I have no idea what they're going to say, what if it's mixed?

What if 80 percent of his conduct was outside the scope of the presidency but 20 percent was in? Do you pull that 20 percent out of the case? I have no idea. And that's why I'm eager to see this opinion.

But if they say, district court, you have to take it back, you have to do further fact-finding, then the chances of this case being tried before the election fall down to zero. There's just no way to get that all done.

SMERCONISH: OK, 10:00 a.m. eastern time, Monday. I presume we turn on CNN and there you will be sitting to provide analysis in real time.

HONIG: Absolutely. But the one that comes at 10:00 a.m. is going to probably be a less exciting one. There's three. And I think immunity will probably be last. So, if you want to skip right to immunity 10:08 or so tune in.

SMERCONISH: Elie, thank you as always. Get some rest.

HONIG: Thanks, Michael. See you soon.

SMERCONISH: More social media reaction. From the world of X, formerly known as Twitter.

Two weeks from now, Trump gets sentenced to prison. Neither of them are making it to November, says Joshua.

It's amazing, Joshua, just to think about we just had the debate. Monday comes the immunity announcement. To your point, then comes the Trump sentencing, then comes the Republican National Convention, and then comes the Democratic convention a couple of weeks thereafter.

There's just like no -- can you imagine doing what I do for a living, which is commenting on all of the above, trying to look at a calendar for the summer and figure out, huh, when could the family go to the Jersey shore for a week? It's impossible. It's just impossible. And it's going to be never-ending and nonstop, right through the election.

Still to come, the final results of today's poll question. They tell me there's a lot of voting. Hand to God, I don't know. I don't know what the voting is.

Go vote and when you vote, you'll see what the result is. How could it be anything other than this? Should the Democratic nomination be determined by a contested convention?

Subscribe to my free newsletter when you're there. You'll get exclusive editorial cartoons from the legends. Rob Rogers drew that for us this week.

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[09:53:52]

SMERCONISH: So, there's the result. Check it out. Wow, 39,715. And by the way, now we're already over 40,000. Should the Democratic nomination be determined by a contested convention? It is a 70-30 vote, yes.

I must say, I am not surprised, except by the margin. You know? My gut told me it will probably be like 55-45. Here's some social media reaction that came in. I wonder if they're listening at the White House.

It was horrible. I felt sad for him until I heard he was not dropping out. Come on, Joe. Do the right thing, says Motherofweens.

Hey, I know who voted opposite. Can you put the poll result back on the screen, David? Put that back up on the screen. It just occurred to me. There you go.

Should the Democratic nomination be determined by a contested convention? You know who is in the know category to the extent he voted on the poll question today? Donald Trump. Like Donald Trump -- I listened carefully to what he said yesterday in the rally and I'm sure he loves the status quo. He's enough of a showman to appreciate the interest that would be in gendered in a contested convention and how the whole world, much less the whole country, would be focused on the excitement and the competition and the speeches.

[09:55:10]

And somebody coming out of that would have a head of steam that Biden certainly doesn't have today. One more social media reaction, if I might.

President Biden is a good and decent man. Two attributes your guy has no idea about. I stand with our president. Share that.

Nancy Sullivan, he's not my guy. Like, why are you shooting the messenger? Stick your head back in the sand and see what you get. Because I'm explaining the reality, it's like, oh, he's your guy because of my willingness to just honestly embrace what we all saw?

And by the way, here's our area of agreement. Now, I'm criticizing you for your cheap shot at me, but here's our area of agreement. He is a good man with a record of accomplishment, but families all across the country are dealing with this kind of a situation each and every day.

See you next week.

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