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Smerconish

Diplomatic Breakdown At The White House. DOGE Cuts Raises Debate On National Debt And Deficit; FBI Used Restricted Genealogy To Identify Idaho Murder Suspect. Aired 9-10a

Aired March 01, 2025 - 09:00   ET

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

(COMMERCIAL BREAK)

[09:00:24]

MICHAEL SMERCONISH, CNN ANCHOR: Zelenskyy didn't start this fight either. I'm Michael Smerconish in Philadelphia.

You've seen the highlights. I recommend you watch it all. For 40 minutes yesterday in the Oval Office, there was a frank and civil exchange. And then it all hit the fan. It began when a Polish journalist asked President Trump, what's your message for those who think you're too close to Putin?

And President Trump's response, in my opinion, totally appropriate. The former New York City real estate developer said he wasn't aligned with Putin, that he's aligned with America, that he's aligned with the world, that he's aligned with Europe. And that if he belittles Putin, he'll never be able to negotiate a deal, especially where President Zelenskyy's hatred for Putin is so evident.

And then Trump called for one more question. But before the media could respond, Vice President J.D. Vance asked to be heard or as the Wall Street Journal lead editorial today notes, he offered a, quote, "odd interjection." He blasted former President Biden. He said, the path to peace is through diplomacy. He noted that America has tried thumping its chest, but that approach had failed.

Then President Zelenskyy responded with a brief history of Russian aggression in the last decade. Zelenskyy wanted it understood that Putin had violated agreements, that he continued to kill people, didn't honor a ceasefire, and didn't exchange prisoners as he had promised. So what kind of diplomacy do you speak of, J.D., he then asked. And Vance turned the tables. After having started this debate, he changed the subject and said that it was unfair to litigate in front of the American media.

And that was it. The tone shifted. The language grew sharp. President Trump took umbrage at Zelenskyy, saying that the United States was protected by an ocean, but that it would feel pressure in the future. You're in no position to dictate what we would feel, said Trump. You don't have the cards, said Trump.

You're gambling with World War III, said President Trump. He then told Zelenskyy he was being disrespectful. And Vance chimed in and said, you've not told us thank you. On one thing, all sides can sadly agree, Trump said that it would make for great television, and it was. I've watched the final 10 of the 50 minute presser three times.

Each time I see something new. And soon after the Oval Office exchange, I watched live as Zelenskyy sat with Bret Baier on Fox News and answered some appropriate but sharp questions without flinching or offering an apology. Here's where I come out. Zelenskyy's a mensch. He's a stand-up guy with a Churchillian spine who's proven wrong those who said that an actor and comedian was unsuited to go toe-toe with Putin. He has, and he and his country are still standing.

Yes, with the benefit of a lot of American support. Vance lit the fuse. He injected himself into the fray, made an argument, then cried foul when Zelenskyy offered a rebuttal. And Trump, seeing the spotlight turned toward his number two and a visiting head of state, took control and escalated the language. I don't like that Trump recently excluded Ukraine from the meeting with Russia in Saudi Arabia.

Or that Trump incorrectly blamed Zelenskyy for Russia's invasion. And Trump was wrong to say that Zelenskyy is a dictator while remaining silent on Putin. Plus, it was a disgrace. It was a disgrace on Monday that in a U.N. vote, the U.S. voted with Russia and North Korea instead of its European allies in refusing to blame Russia for starting the war. It's all rather embarrassing unless it results in a deal.

See, this is the true test of a transactional president. Can the art of the deal bring about the end of the war? I think it's offensive to ask Ukraine for reimbursement. Backward looking for American aid, that sets a bad precedent. Telling a friend threatened by an invading force and no friend of ours, well, we'll help you, but only for a price.

If, however, there's a mineral deal to be struck in our mutual interest, let's do it. And if after striking that agreement, Trump can resolve a three-year-old war in a way that Biden could not and which protects Ukraine's sovereignty, I'll be the first to say this was all worth it. And maybe you deserve a Nobel Prize, Mr. President. But until then, I'm going to keep thinking that the bullying and the browbeating of the Ukraine president by the American president and vice president was unnecessary and out of bounds.

[09:05:04]

One more thing occurs to me. Yesterday a conservative journalist asked President Zelenskyy about his attire, noting that he wasn't wearing a suit. And this entire scene played out in an Oval Office that once again showcases a bust of Winston Churchill. There he is, by the way, between President Trump and Vice President Vance, Churchill, who it should be noted during World War II would often wear his famous siren suit, so called because it could be slipped on and zipped up when air raid sirens went off. Yes, Churchill wore this even in the presence of foreign leaders and heads of state.

There he is with General Eisenhower, future president of the United States.

I want to know what you think. Go to my website at smerconish.com answer today's poll question. Who bears the most responsibility for the Oval Office argument? Donald Trump, J.D. Vance, Volodymyr Zelenskyy, or all equally?

Joining me now, CNN Senior Military Analyst James Stavridis. He's the former Supreme Allied Commander of NATO, a retired four star Navy admiral, a partner at the Carlyle Group, a global investment firm. He serves on the board of advisors for a handful of defense related companies and is the author of a terrific book, "The Restless Wave, A Novel of the United States Navy."

Admiral, I imagine you have seen many squabbles like this among world leaders and military leaders, but not on camera.

ADM. JAMES STRAVIDIS (RET.), CNN SENIOR MILITARY ANALYST: Yes, you hit the right point. By the way, I agree with your analysis overall. I go back a decade ago when the NATO heads of state and government, including our President Barack Obama, who by the way, his nickname was No Drama Obama, he knew enough to keep those kind of disagreements out of the photo spray at the top of the event. And he and other world leaders would go toe-toe with Hamid Karzai about how were conducting the war in Afghanistan. Putting that all on display does neither side any good.

SMERCONISH: Can the European allies make up for a total collapse of U.S. support to Ukraine?

STRAVIDIS: I think they can. It's a matter of will, not capacity, as follows. Europe's collective economy is 22 percent of the world's gross domestic product, just ahead of the United States at 25 percent. Really, Europe collectively in the U.S. are a matched pair of horses economically. Pretty close.

How big is Russia's economy? It's under 4 percent. So right out of the gates, the Europeans have four to five times more economic capacity. And how about military spending? Putin spending about 150, 160 billion.

Collectively, the Europeans, particularly now that their defense budgets are going up, are now approaching 4 percent, Michael. So certainly the capacity is there to do this. The question which we'll learn more about this week, including tomorrow at a big meeting, we will learn more about the will that has to go alongside that capacity.

SMERCONISH: So, read the tea leaves so far because, you know, any number of European leaders have thus far voiced their standing with Ukraine in the aftermath of what transpired in the Oval Office yesterday. Any of that reaction noteworthy to Admiral James Stavridis?

STRAVIDIS: Yes, I think that the initial returns in the immediate aftermath of the bottom crater created by the meeting yesterday, the initial returns from the Europeans are sounding cautiously optimistic. I feel them starting to realize they're going to have to put the pack on here, back to a wagon being pulled by two horses. If one of the horses just slips away, that other horse can keep pulling. You got to make sure it doesn't veer off in a bad direction as a result. It'll be led by Macron and Starmer, France and Britain.

Look for the Poles to play an important role here. Look for the Baltics, who are small countries but mighty in their fear and detesting Russia. Look for the Swins (ph), the Swedes and the Finns who have long bad history with Russia. I think there's plenty of will to go with that capacity. I think the Euros are going to step up here.

SMERCONISH: OK, if the United States collapses its support for Ukraine, if it greatly diminishes what it's heretofore been doing for Ukraine, and if the Europeans don't fill the void, for how much longer can Ukraine hold out on the battlefield against Russia? How long can they go it alone?

[09:10:01]

STRAVIDIS: They can't go it alone for any reasonable amount of time. But assuming the Europeans even continue their current level of aid, and let's do the numbers for a minute here. The U.S. thus far in three years has provided about 120 billion, call it 40 billion a year. The Europeans have provided in total all forms of aid well more than that, 160 to 180 billion. There will still be a lot of capacity going toward Ukraine.

I'm going to assume that will continue and even go up on the European side. In that scenario I think the Europeans backing to the Ukrainians, I think Zelenskyy can hold out for an indefinite period. If the U.S. remains engaged back to your scenario. I think that Donald Trump then has a chance at cutting a deal.

And if he really wants to cut a deal, he's going to have to maintain some level of aid, kind of park the animosity. And oh, by the way, I imagine if you asked President Trump was that the toughest moment in a negotiation? I bet he's seen some moments a lot angrier and a lot more difficult than that and gone on to eventually cut a deal. The key is we got to stay in this. Otherwise, what I really worry about, Michael, is the knock on effect on the NATO alliance.

SMERCONISH: I hope that President Trump's leadership gets us to the right place. And I'm trying to give him every benefit of the doubt. I just don't like the way it looked yesterday. It's not how you treat a friend, the way that I was raised.

Thank you, Admiral Stavridis. I appreciate you as always.

STRAVIDIS: My pleasure, Michael.

And one last thought on the meeting. I think Zelenskyy should have used an interpreter. Trying to do it in English, although his English is reasonable, I think was a real handicap in those negotiations. Personality matters, communications matter.

SMERCONISH: Thank you, Admiral. Good to see you.

By the way, to the admiral's last point, I watched that interview with Bret Baier who I have to say I thought did a terrific job, asked very direct and appropriate questions. But to the admiral's point, in the Fox News interview, there was an interpreter out of camera shot. And on two, I think occasions, President Zelenskyy just sort of paused, looked off to the stage. You could hear that audible voice. And so maybe some of this was lost in translation in the Oval Office.

What are your thoughts? Hit me up on social media. I'll read some responses throughout the course of the program. From the world of X. Watching the whole meeting and not just snippets.

Yes, do that. Zelenskyy needed a reality check and he got one. He's fighting a war he can't win. President Trump is keeping his promise to the people who supported him. People need to research what kind of leader Zelenskyy is.

Lizann, you had me up until the end. I have done the research. I'm not sure what your reference. I look at somebody who has got to be emotionally and physically exhausted and yet there he is keeping -- speaking of Zelenskyy, and yet there he is, you know, holding together his country with a hell of a lot of our support for sure.

Keep voting on the poll question at Smerconish.com. Here it is. Who bears the most responsibility for the Oval Office argument? Trump, Zelenskyy or Vance or all equally?

Up ahead, new reaction to the diplomatic breakdown of the Oval Office. A former member of President Zelenskyy's cabinet joins us live and tells us what he thinks comes next for the U.S.-Ukraine relations. Don't forget, sign up for my daily newsletter, it's free. When you're at smerconish.com Steve Breen just drew this for us.

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[09:18:00]

SMERCONISH: The White House standoff ending with a swift exit from the Ukrainian delegation, an unsigned rare mineral earth deal, and President Trump telling this to reporters about a path forward.

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE: What does Zelenskyy need to do to restart talks with you?

DONALD TRUMP, PRESIDENT OF THE UNITED STATES: He's got to say, I want to make peace. He doesn't have to stand there and say about Putin this, Putin that. All negative things. He's got to say, I want to make peace. I don't want to fight a war any longer.

(END VIDEO CLIP)

SMERCONISH: And just this morning, President Zelenskyy affirmed the role of the United States and his mutual desire for peace via X, writing the following. "America's help has been vital in helping us survive. And I want to acknowledge that despite the tough dialogue, we remain strategic partners. But we need to be honest and direct with each other to truly understand our shared goals. It's crucial for us to have President Trump's support. He wants to end the war, but no one wants peace more than we do.

We are the ones living this war in Ukraine. It's a fight for our freedom, for our very survival." So will this be enough for the breakdown and negotiations yesterday to restart? Let's talk about it with Tymofiy Mylovanov. He's the president of the Kyiv School of Economics and previously served in President Zelenskyy's cabinet as the Minister of Economic Development of Ukraine.

Tymofiy, welcome back. What is the reaction in Kyiv? What is the reaction in Ukraine?

TYMOFIY MYLOVANOV, PRESIDENT, KYIVE SCHOOL OF ECONOMICS: Well, yesterday everyone was shocked. That's just one reaction. Shock. The United States is our strategic ally. It's difficult to imagine how we can survive without the United States support.

Also, there is Europe. It is true that some of the -- you know, I watched the tape over and over. I think there's been a lost in translation moment with this question to J.D. Vance from Zelenskyy. I think that triggered the conversation or the basically shouting match could have been avoided. It's very unfortunate.

[09:20:00]

SMERCONISH: In other words, do you attribute this to something being lost in translation? In part, do you think that perhaps President Zelenskyy misread what was going on, initially?

MYLOVANOV: I think he said this phrase, what kind of diplomacy are you talking about, J.D. And I think that triggered vice president. But this is basically English. You know, he didn't mean it as an insult. You know, a lot of Ukrainians would use that phrase, what kind of something you are talking about.

And I think Ukrainians do not always understand that that phrase reads as an insult or as a trigger for a lot of people. He actually followed up immediately after that by saying, what do you mean? But that was too late, I think.

SMERCONISH: Do you think that your president misread the room? That he should have been more effusive in his thanking of President Trump? That he shouldn't refer to J.D. as J.D. but rather as vice president? Maybe that he should have put on a tie. Those type of factors.

MYLOVANOV: People have discussed that indeed and said yes to this. And we could have seen how J.D. Vance will continue to speak. Vice President J.D. Vance continued to say Mr. President to Zelenskyy varies this J.D. was a response or previous reference. So there is definitely a little bit of that and there is an expectation, it was read in the room by a lot of people, that the United States expects a lot of gratitude, a lot of very differential attitude. So I think there is some macho thing going on.

It's like, you know, as one person said, it's just men fighting and we shouldn't have that.

SMERCONISH: OK, so let me go back to where I began, the reaction in Kyiv and in Ukraine. And I know it's hard to sum up a nation's reaction, but I'm curious, anecdotally, are you seeing people rally around your president or are they disappointed in him and thinking that he should have been more grateful?

MYLOVANOV: Well, there is a little bit of that of criticism, but it's coming somewhat from pro-Russian accounts and politicians and Russian leaning. Majority of people, including the military show even stronger rally around the flag effect than happened last year -- last week.

SMERCONISH: Senator Lindsey Graham commented on what transpired yesterday in the Oval Office. I'm going to play it. You'll be able to hear and hopefully watch. And then I want you to respond. Go ahead.

(BEGIN VIDEO CLIP)

SEN. LINDSEY GRAHAM (R-SC): What I think complete, utter disaster. I've been to Ukraine eight or nine times since the war started. I understand the consequences of Putin's actions against Ukraine. I appreciate what the Ukrainian people have done. They fought like tigers.

At the end of the day, I was hoping that this minerals deal which would be transformative in the relationship would go over well. I talked of Zelenskyy this morning. Don't take the bait. President Trump was in a very good mood last night. Somebody asked me, am I embarrassed about Trump?

I have never been more proud of the president. I was very proud of J.D. Vance standing up for our country.

(END VIDEO CLIP)

SMERCONISH: He goes on to say, Tymofiy, that resignation should be considered by your president or perhaps sending someone else in his place to continue the negotiation. What do you think?

MYLOVANOV: Yes, I don't think resignation is the way to go here. I think the way to go here is to rebuild the relationship. I think there is definitely some undertone of a conflict maybe still going at least between Vice President J.D. Vance and President Zelenskyy because vice president still mentioned a little bit out of place for me. But it's clear that it matters to him, the Pennsylvania trip before the election. So I think those issues also have to be resolved.

And I think what Zelenskyy is trying to say is that I wanted to have a direct conversation. He repeated it yesterday on Fox News and today on X. But I think that might, you know, that might be just one step. You have to do much more to rebuild the relationship. And I think this is critical.

SMERCONISH: Final question. He was given, by my count, three opportunities to apologize by Bret Baier in that Fox News interview and he didn't. Do you think that he should have?

MYLOVANOV: I think -- I cannot speak for the president and it's too sensitive of a situation to suggest anything. I personally would have apologized because I don't see any harm in apologizing. Perhaps I apologize too much to people, but I think that wouldn't have hurt.

SMERCONISH: Yes, I think he was on the side of right Sometimes in life, maybe I'm speaking for myself. We offer apologies even when deep down --

MYLOVANOV: Absolutely.

SMERCONISH: -- we say my behavior really was in -- yes. OK. We read each other.

[09:25:01]

MYLOVANOV: The absolute well the same page area.

SMERCONISH: Thank you, Tymofiy. Thank you. Appreciate you coming back.

Let's check in on some social media reaction from the world of X. I think -- what do we have? Buck stops with the big guy. Vance purposely badgered Zelenskyy, but Trump needed to set the tone and make sure things got done.

I think that in my view, and I offered this in my opening remarks, I think it was calculated by the vice president's -- by the vice president. You know, he wanted a piece of this. Maybe now perhaps I'm reading too deeply into it, but the number two for the first four weeks of this administration has been Elon Musk. This was the vice president, I think, making a play for some real estate. And I have no problem with that.

But he was offered a substantive response by President Zelenskyy. Zelenskyy made good points about how unreliable and untruthful the Russians have been. Putin has been. And then Vance didn't want to engage on the substance. Instead he tried to change the subject and make it into well, we're not going to litigate this in front of the media.

Why not? You just began that litigation in my view. Go to my website smerconish.com tell me who bears the most responsibility for the Oval Office argument. Is it President Trump, is it Vice President Vance, President Zelenskyy, or all of them equally?

Still to come, identifying a suspect in the Idaho killings led FBI agents to use DNA data from consumer sites like MyHeritage. Should law enforcement be allowed to invade the public's privacy if it means catching a killer on the run?

And the national debt is at an astounding number. President Trump and Elon Musk are pressing forward with massive layoffs to increase efficiency. Is the national debt finally having the news making moment that it's needed to be taken seriously? We'll go there too.

When you vote at smerconish.com sign up for the newsletter. You're going to see the work of award winning cartoonists like Rob Rogers.

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[09:31:30]

SMERCONISH: If he were alive, I don't know whether Peter G. Peterson, a former prominent figure in finance, politics and philanthropy, would approve of the approach and tactics of DOGE and Elon Musk. But I feel certain that he would appreciate the rise of a public conversation about our national deficit and debt.

Peterson lived the American dream. He was the son of immigrants who operated a quintessential Greek diner in Kearney, Nebraska, where an eight-year-old Peter first learned to run the cash register. He had a knack for business. Rose to be chairman and CEO of Bell and Howell, then secretary of commerce under President Nixon, later the co-founder of private equity firm Blackstone Group.

Peterson saw the nation's fiscal outlook as an existential threat. He was one of 40 billionaires, led by Warren Buffett and Bill Gates, who agreed to give at least half of their wealth to charity. And in Peterson's case, that meant endowing the Peterson Foundation with $1 billion to educate the public about the national debt and deficit. Perhaps you've seen some of the foundation's media. We're showing it now.

He passed in 2018, but the foundation lives on. Today, his son is the chair and CEO. Michael Peterson joins me now. Michael, thanks for being here. Why was your dad so fixated on American debt?

MICHAEL PETERSON, CHAIRMAN AND CEO, PETER G. PETERSON FOUNDATION: Well, thank you, Michael. Thanks for having me. I think, as you mentioned, my father's life represented the American dream in many ways. And I think the values that he learned growing up were about saving for the future, investing in the future, leaving the next generation better off.

And when he looked at the outlook for the United States, it was the opposite of that. The 36 trillion in debt that we've amassed, the trillions more coming, the demographic challenges he foresaw very clearly a point at which the American dream was under threat because of the borrowing we're engaging in. So, that concerned him and he wanted to dedicate most of his wealth to this issue.

SMERCONISH: So, it's hard to wrap your head around what are the practical implications of a nation being $36 trillion in debt. What's the metric? What's the barometer? How do you like to convey this in language we can all understand?

PETERSON: Well, it's -- it's like any debt problem. So, the biggest challenge coming from the national debt is interest costs. So, the annual deficit is what we spend more than -- that exceeds our, our revenue, right? So, this year were going to spend about $7 trillion. And we're going to take in only about $5 trillion. That's the annual deficit. The 36 trillion of debt is the annual accumulation of that over many years. And the result of that today, you can already see it, is that we spend more on interest than we do on our national defense.

We spend more than 2.5 billion per day on interest alone. That does nothing for our future. That's an investment in our past. And as we look out over the next 10 years, we're going to amass another $22 trillion of debt over the next 10 years. And so, we're only adding insult to injury at this point.

SMERCONISH: So, I'm all for ridding us of waste, fraud and abuse. But is that enough? Or is that a drop in the bucket given the size of what we face?

PETERSON: Well, it's necessary and important, but it is not enough. So, if you want to look at what's going to happen over the coming decades, you must look at demographics. And we have a baby boom generation that is in the process of retiring. Ten thousand people every day go from working and paying into the system to retiring and taking out of the system.

[09:35:02]

And that puts a lot of pressure on our entitlement programs and our retirement programs. Those represent the vast majority of the budget, and we need to get at that is the key driver of our debt problem.

The waste, fraud and abuse, listen, that's there. I applaud any efforts to rid us of improper payments and other forms of waste. We should do that. And we applaud that.

However, it's not going to get us out of this problem. We need to focus on the big drivers.

SMERCONISH: Right. And we haven't had, to my way of thinking, a serious conversation about the big drivers since Simpson-Bowles on Obama's watch which never came to a full vote based on their recommendation because they couldn't get the super majority that they needed.

You get the final word. Go ahead and take it.

PETERSON: Well, we need to do another version of that. The good part about this challenge is that it's very solvable. OK? You've been talking about Ukraine this morning, solving that crisis, involves Europe, Russia, Ukraine, et cetera.

Our budget is entirely within our control. There's a few hundred people in Washington that could solve this as soon as they're ready. And we've done something last year called our Solutions Initiative. We gave grants to seven different think tanks from across the political spectrum. They all solved this problem.

So, we know exactly what we need to do. It's some combination of reforms to our tax code to bring in more revenue or -- and or reforms to our spending to reduce the level of spending, or at least the growth of that spending.

So, the good part is we know exactly what to do. We've got many policy options on the table. We're entirely in control of this situation. We just need some leadership and political will to get this done for the benefit of the next generation.

SMERCONISH: Michael Peterson, thank you for being here. Appreciate it.

PETERSON: Thanks for having me.

SMERCONISH: More social media reaction. From the world of X. What do we have?

We all want the debt reduced, but would it be so nice for Americans to get some cha ching. Tired of giving it all away to everyone else in the world. Americans work hard.

Why can't we walk and chew gum at the same time? As my guest just said, they've identified. We all know what the drivers are. And although I want to see waste, fraud and abuse rid of the government, that's not enough. It's not enough.

Maybe we won't be 36 trillion in debt. We'll be 35 trillion in debt. Still to come. Is it better you've heard this before, right? Blackstone, I think. Is it better that 10 guilty people go free than one innocent person suffer?

Investigators struggled for weeks to find who might have committed the brutal stabbings of four University of Idaho students in the fall of 2022. That was until the FBI stepped in and used restricted consumer DNA databases to identify Bryan Kohberger as a potential murder suspect. Did the ends justify the means?

New York University law professor who focuses on DNA and new policing methods, here to explain. And don't forget to vote on today's poll question at Smerconish.com. Who bears the most responsibility for that cluster yesterday in the Oval Office, our president, President Zelenskyy, Vice President Vance, or all of them equally? While you're there, sign up for the newsletter for which Scott Stantis just sketched this.

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[09:42:31]

SMERCONISH: New details about the Idaho murders of four college students revealed that FBI agents used restricted DNA information to identify Bryan Kohberger as a suspect. Normally, investigators are allowed to enter DNA evidence into a public database so that they can identify a suspect's distant relatives and track down a person of interest.

Genealogy websites like 23andMe, MyHeritage, GED Match, and Ancestry forbid law enforcement officers from using their data without their customer's consent or as required by a court order. Before Kohberger was arrested, investigators they struggled for weeks to find who might have fatally stabbed these four students at an off-campus house near the University of Idaho in the fall of 2022.

A tan leather knife sheath was recovered from the crime scene. Taken to a private lab in Houston, but the results came back with very few leads, and the one person who was then approached refused to give his DNA to assist in the investigation.

The FBI took over the search and found DNA match -- a DNA match nine days later, after uploading the suspect's DNA to MyHeritage and GED Match, databases that explicitly promise privacy to their users who have opted out of such law enforcement searches. Kohberger's defense attorney claims her client's constitutional rights were violated by the FBI, failing to obtain search warrants before using these genealogy platforms.

A judge overseeing the Idaho murder trial rejected those claims and allowed the consumer DNA data to be used as evidence. The family of one of the victims, relieved with the court's decision, thanked the prosecution for their investigation. But the FBI's use of restricted DNA data raises more concerns about justifying the invasion of privacy for consumers.

Joining me now is forensic DNA expert, NYU law professor Erin Murphy. Her research focuses on technology in the criminal justice system. And she's the author of "Inside the Cell: The Dark Side of Forensic DNA" which addresses the scientific, legal, and ethical challenges of forensic DNA.

Professor, good to see you. So, did the FBI violate privacy laws in this case?

ERIN MURPHY, NYU LAW PROFESSOR: Truthfully? Probably not. Under the constitution, it's pretty clear the Supreme Court has said that state privacy laws do not set the scope of constitutional protection. Under the federal law we don't have a kind of directly pertinent statute. We don't even really have good regulations of access to genetic material more generally.

[09:45:00]

So, there's no federal law to violate. And although about 10 states have passed laws directly targeting law enforcement access to genetic genealogy databases like these, these recreational databases, those states don't include Idaho. And even if it did, it's not clear the FBI has to follow Idaho's law when it does searches.

SMERCONISH: So, did the DNA databases violate their agreements with their customers?

MURPHY: I would say yes. These databases have promised their customers that they will not allow access to law enforcement without proper court orders or without process of some kind. And if it were -- the case that the law enforcement officers were kind of sneaking in in ways that were unexpected, you might say, well, it's not their fault that the law enforcement broke the terms of service.

But in this case, it has been an open secret for a long time that these particular databases are used by genealogists and others in ways that they are not supposed to be used. There have been numerous reports going back to 2018 specific to MyHeritage and GED Match about just this problem. So, I think it would be hard for the platform to say we had no idea the FBI was in there making up fake names and uploading profiles and clicking that they were complying with terms of services that they were breaking.

I will say it's not clear those customers have much by way of recourse, though, because again, the damages that you get from something like this are obviously pretty minimal. And you would need to find customers of the platform. Kohberger, remember, the defendant in this case was not a customer of the platform. He was found through the search. He wouldn't be very sympathetic even if he were.

But say the person who had nothing to do with this crime, who was approached for a DNA sample, let's say that person tried to sue -- damages tend to be pretty minimal in this case. So, good luck finding a lawyer to represent you.

SMERCONISH: OK. I get it. Like, given the grave stakes of this case, I'll never convince the audience that they should be alarmed by this. But nevertheless, it sounds like a hell of a law school exam question, right? Back in the day, I could have filled a blue book on this.

Isn't this fruit of a poisonous tree as contemptible? If he is guilty, as he may be, should any of this come in?

MURPHY: I think what you're really hitting on is how much this is an area that needs regulation. Look, this search was obviously one that many people will support because it was done in a very serious crime and seemed to identify someone who would have gone unidentified. But this is not the only kind of case, again, where this is happening. This is happening day in and day out in much less exciting or high profile or serious cases.

And it's unnerving to think that the FBI is creating a policy that's making promises like, we only search in databases where people have said, please search here, or we don't look for medical or health information, or we won't take third party samples of innocent people and upload them into our databases forever. And they're just breaking it without any consequence whatsoever.

And I think this shows you why we need to have rules in place to regulate these searches, to say you have to go to a court and get a warrant to protect the people who are going to be kind of collateral shrapnel of those searches that are innocent and have nothing to do with the crime and protect their genetic information. And I'll say, we've already seen also instances in which these searches have led to wrongful arrest and incarceration.

There is a case right next door to Idaho, in Washington, involving a man who was arrested, incarcerated for three years, lost his whole life, including his wife based on one of these genetic genealogy searches that turned out to be wrong.

SMERCONISH: Just a quick final thought because we're out of time. I'm totally into the subject of genealogy. I use all these databases because I'm interested in family history. What I know is that when one person in a family or in a family tree makes a decision, they're going to participate. Everybody else is now in the pool. Twenty second reaction?

MURPHY: Yes. I mean, I will say this. There are definitely -- not all platforms are created equal. 23andMe has shown itself so far to be very serious about privacy, to fight when law enforcement tries to get it. That's just different from a site like MyHeritage or GED Match, which has again and again broken their own rules and done so knowingly.

So, I think this is a reason we need protection so people can participate in genetics. Law enforcements also access health databases, newborn screening databases. I think Americans want to be able to find out genetic information without turning over directly to the law enforcement officers their whole family genome.

SMERCONISH: Thank you, Professor Murphy.

MURPHY: Thank you.

SMERCONISH: Checking in on more social media reaction. From the world of X. By the way, you can find me on all the social media platforms and sound off.

Individuals shouldn't worry about privacy concerns because if they are not doing anything wrong, there's no reason --

Isn't there a retort from Ben Franklin that I'll screw up if I try and offer? I mean, that is -- that is a dangerous mindset because sooner or later mistakes get made and then they come for you, as the professor just explained.

[09:50:02]

You still have time to vote on today's poll question at Smerconish.com. I cannot wait to see how this turns out. Who bears the most responsibility for what went on in the Oval Office yesterday? Your choices, Trump, Vance, Zelenskyy, or all of them equally.

And by the way, don't hit and run. Don't just vote and leave. Sign up for the free daily newsletter while you're there. You'll get exclusive editorial cartoons from the likes of Jack Ohman.

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SMERCONISH: So, there's the voting thus far. We'll keep the poll up there. Wow. Whoa. I'm startled by the number of votes, 79,312. Damn. Who bears the most responsibility?

[09:55:00]

Trump, number one. Vance, number two. Add those two together, by the way, and see what you get. All equally, Zelenskyy, just four percent. I disagree with that outcome, but I'm usually in the minority. Quickly, one social media reaction is probably all I'm going to have time for. What astounding voting.

This was nothing more than Kabuki theater yesterday being played by stars Trump and Vance, WWF style Rock 'Em Sock 'Em Robots -- now, you're talking my language. Down to the reporter asking attire staged but not for our entertainment.

It was a blank show, as I've said earlier. It was a cluster. I mean, fill in the blank.

I'm willing to be impressed and surprised at the end if there's a deal that's negotiated that protects the sovereignty of Ukraine is in the United States' best long-term interest then I look forward to coming back here and saying, you know, Donald Trump deserves a Nobel Peace Prize. But until that time, I don't like the way in which our guest and our friend and ally was treated.

I know who won. I don't know who started it. Well, I do, Vance. But I know who won, Putin.

If you missed any of today's program, you can always listen anywhere you get your podcasts. Thanks for watching. See you next week.

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