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Former Vice President Mike Pence Is Subpoenaed By Special Counsel Investigating Trump And January 6; FBI Analyzes First Pieces Of Shot-Down Chinese Balloon; Members Of Congress Roast Each Other At Annual Dinner; Will President Biden Sit Down For Fox News Pre-Super Bowl Interview?; Ten Former NFL Players Sue League's Disability Program. Aired 11p-12a ET

Aired February 09, 2023 - 23:00   ET




ALISYN CAMEROTA, CNN HOST: Former Vice President Mike Pence has been subpoenaed. This is a major move by the special counsel investigating Donald Trump's efforts to overturn the 2020 election. Pence was key to Trump's plans to stay in power. Here is what the former president said on January 6th.


DONALD TRUMP, FORMER PRESIDENT OF THE UNITED STATES: I hope Mike is going to do the right thing. I hope so. I hope so. Because, if Mike Pence does the right thing, we win the election. All Vice President Pence has to do is send it back to the states to recertify, and we become president and you are the happiest people.


CAMEROTA: Okay, I want to bring in CNN chief law enforcement and intelligence analyst John Miller, also legal analyst Jennifer Rodgers and senior law enforcement analyst Andrew McCabe, the former FBI deputy director. Great to have all of you here tonight.

Jennifer, I want to start with you. We had Nick Akerman on last hour, former Watergate prosecutor, who said that without Pence, there is no indictment, that the special prosecutor does not bring in indictment without Pence's testimony. Do you agree with that?

JENNIFER RODGERS, CNN LEGAL ANALYST: I don't know, but I will say he is critical. And if they're going to bring an indictment, he will be front and center because there were conversations that he had with Trump that no one else was privy to.

And, obviously, that time was the crucial conversations about whether Mike Pence was going to block the certification, which is what Trump wanted him to do.

So, crucial, yes. Necessary, I'm not sure, but certainly the centerpiece. CAMEROTA: Andrew, what do you think about that? Because -- I mean, yes, he is critical, he is key, he knows what Donald Trump asked him to do about certifying, but there have been all sorts of other witnesses. Why would there be no indictment without Pence?

ANDREW MCCABE, CNN SENIOR LAW ENFORCEMENT ANALYST, FORMER FBI DEPUTY DIRECTOR: You know, I'm not sure, Alisyn, that -- that I would characterize it that way. I think it is possible to go forward without him. What I don't think is possible is for Jack Smith to conclude his investigation without trying to secure Pence's testimony under oath.

When you are conducting investigation of this size and scope and certainly one that will be second guessed from every quarter, you have to look under every rock. And Mike Pence is a very big rock for Jack Smith. He has to try to get him under oath. He might not be successful, but he has to do everything possible to secure that testimony.

If you look back at the Mueller report, the fact that the Mueller team chose not to subpoena Donald Trump remains as kind of hanging (INAUDIBLE) that many people, including myself, think was a fundamental flaw in the investigation.

CAMEROTA: Hmm. Here's what Mike Pence himself, John, has said about basically what President Trump wanted him to do. He said this to the federal society a year ago.


MIKE PENCE, FORMER VICE PRESIDENT OF THE UNITED STATES: President Trump said I had the right to overturn the election. President Trump is wrong. I had no right to overturn the election. The presidency belongs to the American people and the American people alone. And frankly, there is no idea more un-American than the notion that any one person could choose the American president.


CAMEROTA: So, there are times that he will talk about it. And so, we don't know if he will talk to the special counsel, but there are times when he wants to get it off his chest. He has also written about it in his memoir.

JOHN MILLER, CNN CHIEF LAW ENFORCEMENT AND INTELLIGENCE ANALYST: Well, I think Jen and Andy summed it up, which is there are conversations that Mike Pence had with Donald Trump, likely alone, possibly with others, but his direct testimony is critical.

In terms of tipping and cueing where is a case at, when you are Jack Smith and you are subpoenaing the former vice president of the United States, it is pretty good signal that that is one of the interviews, if not the interview you save for last, because you want to have all of your investigative docs in line before you talk to that critical witness, you want to be able to counter that with any kind of questions where you know everything you could know at that point.

So, it could be telling us that Jack Smith is rounding third base.

CAMEROTA: That is really interesting. Here's who has already testified to the grand jury, so not to Jack Smith, the special counsel, but to the grand jury, who can also testify, I think, to President Trump's state of mind.

So, that is Pat Cipollone, the former Trump White House counsel, Patrick Philbin, former deputy White House counsel, Marc Short, whose Pence's chief of staff, Greg Jacob, former Pence general counsel, Ken Cuccinelli, former Trump DHS official.

So, it seems like they had --have some information that they can rely on even without Pence. But what if, Jen, he says executive privilege, he invokes executive privilege?


Does he not have to testify?

RODGERS: He will testify. The question is, how long will it take? So, if he does try to invoke executive privilege, then DOJ or DOJ through the special counsel will go to court and they'll fight it.

But the law here is clear. In a criminal matter, if you have testimony that you need, that is important, you can't get it from elsewhere, that's the key here, then that will Trump any executive privilege. That is very clear Supreme Court precedent U.S. versus Nixon.

So, that is not the case for congressional investigation, which is why Congress didn't have the ability to force people to testify in the same way. But he will lose that fight and he will testify. The question is, how much litigation do we see before that happens?

CAMEROTA: That's really interesting because I haven't heard about that unequivocally before. And so, Andrew, do you agree that this means Jack Smith is rounding third base in terms of being close to being done?

MCCABE: I would like to think so. I think it's as good a sign as we have seen so far, so it is entirely possible that he is. I think in addition to that list of folks that we know went in front of a grand jury, there are likely many others who did not go to the grand jury but who participated in voluntary interviews with the investigators and for whatever reason they felt they didn't need to put them in front of a grand jury.

So, they've done a lot of work. Jack Smith is a very aggressive lean forward prosecutor and there is every indication to believe that he is carrying that style through this investigation.

CAMEROTA: John, he can also, I assume, set some conditions. I mean, this actually goes to both of you. If he has been negotiating perhaps with the special counsel or the DOJ, could he set some conditions of what he will answer, what he won't answer, what he will give up and won't give up? I'll start with you, Jen. RODGERS: Um, somewhat. I mean, they're going to want his testimony under oath. They would prefer to have him interviewed first with FBI agents, so not technically under oath but still with the possibility of a false statement.

So, they would rather do that and just put him in the grand jury. Pence would probably rather have it be that way, too, so he can bring his lawyer with him. So, they may be negotiating about that and things like --

CAMEROTA: Could he do written answers? I mean, I remember that that was an offer, I think, to Donald Trump.

RODGERS: No. I mean, in theory, if the special counsel agreed, but they will not agree to that. They want his actual statements, right? So, there may be some negotiations there, but they will -- he will not be able to say, I only want to answer some questions and not others. Because if he tries that, like, there is (INAUDIBLE) privilege, I don't want to answer these questions about that, that's when you go to court and get the ruling that that he has to.


MILLER: I mean, we are -- I hate the term unprecedented times because all times are unprecedented.

CAMEROTA: Every day is unprecedented, yes.

MILLER: But, you know, I remember the shock waves -- Andy will remember this, too -- that ran through Congress when we executed -- when the FBI executed a search warrant in a congressman's office. How could this happen?

And, you know, there was all kinds of -- when we are in a world right now where it is almost routine in our discussions and what our audience hears every day that a search warrant is happening at a former president's residence --

CAMEROTA: Or a current president.

MILLER: -- that consensual search is happening at a current president's residence and another residence, and that, you know, the former vice president is under subpoena for a grand jury testimony in a criminal matter, I can't remember a time like this in politics on the White House level. This is all remarkable.

If you go back to Clinton and Monica Lewinsky, there was (INAUDIBLE) he gave a statement. Grand juries are supposed to be secret. It was videotaped. It ended up being released. A lot of these special accommodations and that matter can go awry for people who want special conditions to testify remotely and so on.

So, we will all have to see what Pence works out. But he is -- among this crowd, he has been most -- on the straight shooter variety in terms of going by the book.

CAMEROTA: Okay. Friends, thank you very much for all of that. Meanwhile, we want to talk about this: The Chinese spy balloon is in pieces and the FBI is combing through those pieces for evidence. So, we're going to find out what they have found out about what the Chinese were up to.

Plus, the comedy of Congress.


SEN. RAPHAEL WARNOCK (D-GA): I think that Senator Schumer would have prayed the rosary while facing (INAUDIBLE) if he thought it would turn up more voters in the Atlanta suburbs.





CAMEROTA: Okay, check out these new images. Evidence of the Chinese spy balloon is now in FBI hands tonight. Officials say that the balloon was capable of monitoring U.S. communications.

Former FBI Deputy Director Andrew McCabe is back with us. Andy, I was struck by the pictures of the FBI looking in the ocean, like hauling stuff out of the ocean after the balloon was shot down and, you know, debris spread over miles.

What are they looking for and how can they find it? What exactly -- there are so many little pieces. How will they be able to determine what that balloon was doing or gathering?

MCCABE: Yeah. So, Alisyn, those photographs are very familiar to me. I actually started my career in the FBI back in 1996 working on the TWA flight 800 case. We spent months patrolling the Long Island sound, picking up tiny pieces of a shattered airplane and reassembling it in a hanger.

So, this is some of the work that the FBI does better than any other organization on the planet. They are very, very good at understanding what they are looking for, using technology to find those things, whether that's at the bottom of the ocean or bottom of a lake or in someone's house, and then taking that material back to the lab to really tear it down to its elemental pieces to understand where it came from, what it is used for, and who is responsible for it.


So, I'm confident that that is exactly what they are doing now.

CAMEROTA: And a I understand it, the reason that the FBI is doing all of this is because it could be used as evidence in future criminal charges. How would that work? Who can be charged criminally? MCCABE: Well, we don't know yet, and I think that that is always a

possibility that the FBI kind of holds out there, right? So, they will do this examination and they will preserve all these materials so that it could be used as evidence.

But truthfully, their main goal here is to understand what this equipment was used for and how it might have been threatening our national security. The intelligence collection from an operation like this is far more valuable to the FBI and to the country than really the idea of bringing in indictment against a person located in China or some other foreign place that who you never really see in a U.S. court.

So, I am confident that there are probably partners from the Intelligence Community and other agencies who are participating in the examination of what they bring up, and we are all trying to -- this could potentially be a real gold mine of intelligence collection for the IC.

CAMEROTA: Okay. Andy, thank you very much. It's great to have you. I want to turn now to the former U.S. ambassador to China, Max Baucus. He is also a former Democratic senator from Montana. Mr. Ambassador, thank you so much for being here. So, let us talk about what you have seen and what you think this balloon represents. Do you think that it should have been shot down before it was either over Alaska or Montana?

MAX BAUCUS, FORMER U.S. AMBASSADOR TO CHINA, FORMER MONTANA SENATOR: Well, frankly, the bigger question is, what is the evidence? What will the FBI find? How dangerous was the balloon? How much does it jeopardize national security? That's really the question. We've got to get the facts.

I think it probably would've been better if Secretary Austin were to have called General Wei Fenghe, the director -- military director in China, in advance. When we saw (INAUDIBLE) and say, hey, what's going on here, what's this all about, to try to defuse the tension rather than calling up General Wei Fenghe after it was shot down.

So, I think we got to get the facts. But the main thing is to not let this, no pun intended, be blown out of proportion. We've got to keep our cool, keep calm, because this is extremely important relationship, U.S.-China. So, let's not get too far ahead of ourselves and get the facts.

CAMEROTA: Let me tell you what President Biden said about that today. I will play this for you.


UNKNOWN: Have relations now between the U.S. and China taken a big hit?

JOE BIDEN, PRESIDENT OF THE UNITED STATES: No. No. The idea shooting down a balloon that is gathering information over America, and that makes relations worse? (END VIDEO CLIP)

CAMEROTA: That was actually yesterday. Ambassador, what do you think about that? Do you think that it does not have an effect on relations as the president seems to be suggesting?

BAUCUS: I think it does have an effect. I think it was a big error. It is a big mistake for China to do this. President Xi Jinping has egg on his face. Either he knew about it, it was nuts, stupid, instead of blowing it over prior to the potential visit of Secretary Blinken from the United States, or he didn't know about it. It was a PLA who floated that balloon over and there was some miscommunication within the country.

So, (INAUDIBLE). No question about it. Look at all the congressional hearings. Look at all members of Congress. Very upset about it. And so, it is not helpful.

Now, is it huge? Probably not, but it's not helpful. I think what this really comes down is both the United States and China say, okay, we are the two biggest countries, let's figure out how to work better together.

It's not happening yet because the United States today is so domestically, politically helpful to attack China, attack China, both political parties, including the administration. That's fine. It's a good short-term game. But after a while, it causes China to hunker down, more difficult. It never helps to call people names and we are kind of doing that.

So, I'm just hopeful that we can take this incident and say wait a minute, let's put this in perspective and find a way to work better together.

CAMEROTA: Do you think it's possible that they sent it over just out of sheer brazenness? I mean, that was one of the theories, that they've been sending, apparently, these balloons around. We have not always noticed them over the U.S. They've been doing it globally and they've been doing it with impunity. In other words, do you think it was a mistake or do you think it was just brazenness?

BAUCUS: Well, I do not know.


BAUCUS: I have not talked to President Xi Jinping and asked him. But I think it was more a mistake. It was a big colossal error.


Why they sent it, I'm not sure. If they were to do it intentionally, it means that they are politically tone-deaf to the extreme.

CAMEROTA: We were just talking to Andy McCabe. Perhaps you heard it about now. It is in Quantico. So, Quantico, the FBI agents there are analyzing it too see what they can glean about what intelligence it was able to gather if any or the technology on it. What will the U.S. do with that?

MCCABE: Well, it depends what they find. You know, we surveilled China, you now, as China surveils us. I'm not sure that we have balloons over China, but we sure have satellites over in China. We have U2s flying along the Chinese coast. They are pretty good, just as China is surveilling us.

So, I suspect that we will get some information. I do not know if it will be cataclysmic, but it is just another example of how we have both been trying to learn more about each other.

I want to underline the main point here. We've got to communicate better together. You know, China did not call us up and say, hey, we've got a balloon that's gone astray. That would've been great if they had done that. We did not call China up before and say, what's going on here? That would've helped, too.

We just have to communicate more. We have to work better together with each other because China is not going away. It's a big country. It's always going to be there. They may have a different system, but they're not going away. So, let's just kind of keep the stuff in perspective.

CAMEROTA: We'll see if this is an opening to do that. Former ambassador to China, Max Baucus, thank you very much. Great to talk to you.

BAUCUS: You bet. You bet.

CAMEROTA: Up next, members of Congress cracking jokes about each other at an annual dinner.


REP. NANCY MACE (R-SC): Some think that Raphael Warnock is the future of the Democrat Party. But nothing says political superstar like needing a runoff to beat Herschel Walker.





CAMEROTA: Republicans and Democrats roasting one another at the Washington Press Club's 77th annual congressional Dinner. And Nancy Mace, well, she slayed. Check her out.



MACE: There is only one reason that I was chosen to be a Republican speaker tonight. It is because Kevin McCarthy couldn't get the votes. (LAUGHTER)

MACE: Thank God he's not here tonight because I will probably be called in the principal's office tomorrow morning. Did you watch McCarthy during the speaker's vote? I know many of you were in the halls of Congress during that vote. I haven't seen someone assume that many positions to appease the crazy Republicans since Stormy Daniels.


MACE: It only goes downhill from here, people. I mean, come on. But let's be honest. We all knew that Matt Gaetz would never let the vote get to 18.


MACE: And I know everyone thinks Republicans aren't funny. But if you get a bunch of us together, we can be a real riot.



CAMEROTA: Back with me is John Miller. Also joining us, CNN political commentator and former Democratic representative from New York, Mondaire Jones. Also, CNN's John Berman. So, is Congress just filled with comedians?


MONDAIRE JONES, CNN POLITICAL COMMENTATOR, FORMER NEW YORK REPRESENTATIVE: I think a lot of people are unintentionally funny, right? George Santos in some ways is one of the funniest people alive --

CAMEROTA: A laugh riot. Yeah.

JONES: -- but not because he intends to be. Look, Nancy Mace has sort of mastered or is on the verge of mastering, I think, the stick where, optically, she distances herself from the Republican Party, but on the substance, she votes with the crazies who she was just criticizing every single time.

CAMEROTA: John, jokes about January 6th and Matt Gaetz, too soon?

MILLER: So, too soon and a little off kilter. I mean, it was a great line until you remember that people died that day. So, not exactly on pitch.

CAMEROTA: It confuses me, John. Part of it is amusing and it's definitely amusing. I'll play more of what she said. They are definitely amusing. But it's also confusing because if they can -- first of all, it's that, it is like -- do we think that's funny, January 6th? But it's also so you can all laugh together in a big room one night, and the next morning, you go back to being toxic?

JOHN BERMAN, CNN ANCHOR: That's one of the things that I took out of this was that I actually don't think there are that many opportunities where they get in a room and laugh together anymore.

This harkens -- whether you think it's funny or not, I'll let everybody else decide. I have to admit, I chuckled more than once. This hark is back to a day when there would be political debates during the day and they don't get together and drink at night. There are a lot of reasons why that doesn't happen anymore, but I think that it is not wrong to long for that moment where these folks could, you know, occasionally see each other as people.

CAMEROTA: Well, I agree -- I certainly agree with that. When you were in Congress, did that happen?

JONES: We definitely socialized. Some more than others. I had a lot of great floor conversations. I was closer to the people with whom I served on committees. I was on the Judiciary Committee, ironically with some of the most far-right members --

CAMEROTA: And what was that like? What was it like in the halls when you have to interact with them?

JONES: People are a lot more charming and a lot friendlier than they are when they are debating. I mean, look, you give us good as you get if you're good at the job of being a member of Congress, especially in these polarized times.


But, you know, after the cameras are off, you're really supposed to be respectful. In fact, when the camera is on, you should be respectful.

CAMEROTA: I agree. This is the thing that I find so vexing, which is if you guys really have relationships, let us see that. Let us see that because all we see is the vitriol, you know? And that's why a night like this, and I think about the Washington -- the White House correspondents' dinner, too, which also confuses me because everybody is yacking it up in there as though everybody is besties and then the cameras go back on, to your point, congressman, and everybody is hateful again.

But let's listen to the comedy, let's listen to a little bit more of Nancy Mace and here is also Senator Chuck Schumer.


MACE: Come on, George, you've given Republicans a bad name and that is Lauren Boebert's job.


MACE: Just kidding, Lauren, don't shoot.



MACE: I mean, really, like, who lies about playing college volleyball? Who does that?


MACE: If you are going to lie, at least make it about something big like you actually won the 2020 presidential election.


SEN. CHUCK SCHUMER (D-NY): I'm the first Jewish majority leader.


SCHUMER: But I am not just Jew-ish --


SCHUMER: -- like some other New Yorkers in Congress. I'm Jewish. I'm the real thing, baby.



CAMEROTA: You are chuckling, John. It got you.

JONES: Can I just say, this was also a moment for Nancy Mace to get back at her political enemies, right? I mean, people like Lauren Boebert, Marjorie Taylor Greene, Matt Gaetz, even Kevin McCarthy at times, these people have publicly feuded with her. And so, this isn't just about --

CAMEROTA: Do you think she wrote her own stuff?

JONES: I think she did. I think, you know, she got help from her staff probably. Any good staff is worth their compensations. They should have been helping her --

BERNSTEIN: It's a pretty funny staff. I'm curious who did write those.

CAMEROTA: Me, too, because those are -- those are real jokes --


CAMEROTA: -- right there. I mean, she was delivering them well. But when I read them first on paper, I was like wow, this is funny stuff.

BERNSTEIN: You could see in every wind up to the punchline, she's like, okay, here I go.


BERNSTEIN: Now, it's common.

CAMEROTA: I know. We did not play the one that I thought was the funniest where the youngest member of Congress is --

BERNSTEIN: She dropped an F bomb.

CAMEROTA: She dropped an F bomb.

BERNSTEIN: That's why we didn't play it.

CAMEROTA: Oh. It's so late at night. I feel like we can do that. She said -- I'll just tell you guys. She's talking about the youngest member of Congress, she's 25, and she said, F you, I have stretch marks older than you. I like that.


BERNSTEIN: Miller laughed again.

CAMEROTA: I know. See, John, we are losing you (ph) apparently. Hmm.

MILLER: I needed that.



CAMEROTA: You're welcome. All right, meanwhile, the sitting president typically grants a pregame interview to the network hosting the Super Bowl. This Sunday, it is on Fox, and it seems as though President Biden has not committed to that interview. Will he? Should he? That is next.




CAMEROTA: Tonight, President Biden still has not committed to a pre- Super Bowl interview with Fox. The idea of a Super Bowl presidential sit-down originated with President George W. Bush. President Obama picked it up in 2009 and sat down for an interview every year. President Trump was the first to opt out. That was in 2018. That was an interview with NBC.

Back with me is John Miller, former Congressman Mondaire Jones, and John Berman. John, should President Biden sit down with Fox?

BERNSTEIN: Look, as a card-carrying member of the journalist party, I always want politicians and public officials to do as many interviews as possible. I think it is always great to hear from them whenever we can and they should feel free to answer questions all the time.

That said, I've covered enough politicians, people who run for office, to know that they do what they think is best for them. If the White House and Joe Biden's political advisers think that sitting down with Fox News would be good for them, he will do it. If he doesn't, he won't.

CAMEROTA: Seems a little late.

BERNSTEIN: I don't think it's going to happen.

CAMEROTA: I don't know, but it seems like they would have to be planning it already. But congressman, my point is this. I don't think that the Fox audience often gets an accurate or unfiltered view of President Biden because many of the hosts there slice and dice him six ways to Sunday. So, it's an opportunity where he could reach their audience in a way that he normally doesn't.

JONES: In theory, I don't think the people at Fox News are part of the journalism party. They are not real journalists. I mean, every chance they get to distort this president's record. And it is not mere policy disagreements. Those are fair game, right?

But it is the vitriol, it is the blatant lying, it is still to this day the election denialism, it's the platforming of white supremacists. I'm not going to second guess this president's decision not to sit down with these people. You know, look, Pete Buttigieg does a great job when he sits down with Fox.

CAMEROTA: So, what about that? There's an advantage, maybe, to it? I don't know the answer.


But I'm not talking about the people at Fox although it would be rewarding them. I'm talking about the viewers, if they deserve to hear this, because it is a huge audience. I mean, the Super Bowl, it does not get any bigger than that. So, you think, no, he should not?

JONES: The president had a huge audience during the state of the union when he spoke to tens of millions of Americans across the country and the world even. So, I am hopeful that that was affective. It got great reviews.

I think that the White House is thinking about this and has made decision that it is not going to be at his best interest. But also, a decision has not been made as far as the reporting.

CAMEROTA: That's right. I'm guessing that the Super Bowl gets higher ratings than the state of the union.

MILLER: Yeah, and the commercials are better. So, I think he should, I hope he will, that is a tradition. I go along with John, which is more interviews are better, if you're communicating. I guess that the White House Communications Office has the look on Fox News as a hostile domestic power and why would you send your player in there.

But on the other hand, I think that Joe Biden is a good communicator. I think we saw a piece of that even in some hostile territories the other night.

And tradition matters. We've been talking on this show literally all week about civility and the loss of it. Let's hope that there is enough civility and respect for the president of the United States that they can at least have a useful conversation for both.

CAMEROTA: Here is -- speaking of tradition, I'll put up on the screen. So, Obama spoke to CBS in 2013, then he did sit down with Fox, the next year, NBC, CBS.

Trump did Fox first, and the he opted out of NBC, I'm told, because that was when he was going after the football players for taking a knee and he felt that that -- I guess he didn't want to be asked about that. In 2019, CBS, and then he did Fox again.

And President Biden did CBS, NBC. He has not granted Fox an interview during the entire time that he is in -- he has been president. But, John, what about that, that he could just reach a huge swath of Americans?

BERNSTEIN: Look, he could. The one thing that all those interviews on the screen, the one thing they had in common is that each of those presidents thought it was good for them to do. Again, this capitalism. They do it if they think that benefits them, if they can profit from it. If they don't, they won't. I think it's that simple.

CAMEROTA: He would not be sitting down with Hannity, right? He is not going to sit down with Tucker. He will sit down with Bret Baier. And so, it would be a -- I think, for the president, I think that there are some settings that he is not a great communicator in and there are some that he's better. I think a one-on-one, he's good at, actually.

JONES: Yeah.

CAMEROTA: And so, you know, he might want to seize on that.

JONES: And we saw -- we saw that when he went off script during state of the union. He was very depth in his interaction with a very rowdy, hostile --

CAMEROTA: And do you think he knew that was going to happen? There are some questions about whether they crafted that.

JONES: I think whenever you accuse somebody wanting to make cuts to social security and Medicare, even dozens of them who have explicitly said they want to do precisely that --

CAMEROTA: Are there dozens or there are three?

JONES: Look, there are certainly more than three. There are three members of the United States Senate alone who are on video saying that. Others will say, oh, I do not want to cut social security and Medicare, but I think we should make changes to it. They do not agree with lifting the income cap when it comes to social security.

So clearly, they are talking about raising the age of eligibility, which is a cut, by the way, or privatization, which, you know, if you are leading up to the 2008 financial crisis would've also been a cut because your savings would have been wiped away. CAMEROTA: John, last word.

MILLER: I would be very impressed if they scripted that out and then did heckling during the rehearsals to see how they get through it. My faith in the communications job would go up.


CAMEROTA: All right, gentlemen, thank you. Really fun to spend this time with you. Thank you so much for being here.

All right, 10 former NFL players suing the league's disability benefit program, along with Roger Goodell and the disability board, accusing them of arbitrarily denying disability claims. Up next, we'll hear directly from one of the former players.




CAMEROTA: Ten former NFL players are suing the NFL's disability benefit program. Commissioner Roger Goodell and the disability board. The players accused them of denying disability claims in an arbitrary and biased way.

Joining me now is former NFL player Eric Smith and Attorney Sam Katz representing the former NFL players. Gentlemen, great to have you here. So, Eric, you say that there was a pattern of erroneous and arbitrary benefit denials. So, give me some examples. What happened?

ERIC SMITH, FORMER NLF PLAYER: Well, it was -- if you go to -- they send you wherever in the country to see these doctors and you have 500 pages of medical records, in my case shoulders, neck, back, knees. And you meet with the doctor, you get your x-rays, he comes in and spends five, 10 minutes evaluating you. And of all the injuries I have had when I played, even doctors I have known for my seven-year career, they would spend more time evaluating one simple injury than this planned doctor was supposed to do to give us a full evaluation of our body.

CAMEROTA: I was interested to read, Eric, that you suffered 13 documented traumatic brain injuries. But you were denied benefits in 2013. Then in 2015, as I understand it, you were seen by a different physician who was one of the lowest-paid physicians. He found that you had 20 line of duty impairments.


So, how do you explain that discrepancy or how did they explain?

SMITH: I feel like the best way to describe it would be paid to play. They get paid to see more people. You deny more people, you get send more people. So, you get more money for denying people, so why wouldn't you deny? CAMEROTA: In the lawsuit, Sam, you guys allege that between March 31st 2019 and April 1st, 2020, so basically a year, 4.5% of the players were found disabled by physicians who are paid more than $210,000. In that same time period, 30% of players were found to be disabled by physicians who were paid between 54,000, and 60,000.

So, in other words, the lower-paid physicians find the athletes more disabled. The higher-paid ones don't. I mean, is it truly that that just seems so blatant? Is it that obvious?

SAM KATZ, CO-COUNSEL REPRESENTING FORMER NLF PLAYERS: It is. And as mentioned, there is powerful statistical evidence that strongly suggest that there is this systemic pattern, that the higher the pay to the physician by the NFL Disability Board, the higher that physician's rate of denying benefits.

You know, one example is, there is an NFL highly0paid neuropsychologist who has received over 820,000 from the NFL Disability Board. And this neuropsychologist across 29 different benefit evaluations has never found any of the players to qualify. So, that is %100 denial rate.

This is an aberration. There is an NFL Disability Board neurologist, for example, who has been paid over $1.4 4 million. And across 33 line of duty and TMP (ph) evaluations, the physician once again has %100 denial rate.

The statistics on this stuff show, you know, across about 707 evaluations in the statistical sample, there has been 112 board-paid physicians, and more than half of those have never found any player to qualify for TMP (ph).

CAMEROTA: Hmm. So, let me play for you, Eric, what Roger Goodell, the commissioner of the NFL, said about this.


ROGER GOODELL, COMMISSIONER, NFL: You are always going to have people who may think they qualify for it, doctors disagree, the joint board disagrees. That is the way the system works. But I would tell you, the benefits in the NFL are off the charts.


CAMEROTA: What is your response?

SMITH: The benefits are off the charts. But it is nearly impossible to get the benefits that are going to benefit these former players that need these to prove their quality of life. Think about -- some of these guys don't have insurance because the NFL only provides five years insurance after you finish playing.

The NFL always talks about player safety, we care about our guys. But as soon as you retire and you are done playing, they do not care anymore. They just pretend that they do. CAMEROTA: Sam, here is the NFL's statement. This is from the spokesperson, Brian McCarthy. I will read a portion of it. The disability plan, which is established by the NFL as part of the CBA, includes an uncapped financial commitment to provide benefits or any retired player that meets the eligibility requirements set by the parties. These eligibility requirements and administrative procedures were developed after consultation with occupational, mental and physical health experts.

The plan annually provides more than $330 million to deserving players and their families. The NFL disability plan is fair and administered by a professional staff overseen by a board comprised of an equal number of appointees of the NFL Players Association and the league, which includes retired players. Your response to that?

KATZ: The defendants here have repeatedly, willfully and systematically breached their fiduciary duty of loyalty through hostile and adversarial positions, bad faith, active concealment, misrepresentations, and failing to act in the interest of disabled retired players and their beneficiaries.

A clear example of this is the board's consistent misrepresentation of the fact that all board hired physicians are neutral. An active concealment that many are, in fact, biased.

Another example is related to the plan's terms, stating that the committee members and the board members must review all facts and circumstances in the administrative record.


KATZ: And despite their duty to do so as laid out in the plan and as laid out by federal law, as well as the representations to applicants such as Eric, that they were doing so, the committee and board members have testified recently that their practice is not to review all of the evidence.


Instead, they engaged in a pattern of rubberstamping the erroneous inclusions of physicians financially incentivized to deny claims.

CAMEROTA: So, Eric, what do you want out of this lawsuit?

SMITH: We just want them to fix this sham of a process. Give guys a fair chance to be properly evaluated by a neutral physician. That is all we want. We want guys to be able to have a chance to get the benefit that they deserve.

We spent so many years destroying our bodies, playing through injuries. And now, when you come to your last resort and you are trying to improve your quality of life, you apply for this disability, and then you come in and you could have done your appointment over a Zoom call basically.

CAMEROTA: Hmm. Well, Eric Smith and Sam Katz, thank you for your time tonight. Thank you for explaining all of this. We will obviously be watching what happens with the case. Really appreciate your time.

KATZ: Thank you.

SMITH: Thank you.

CAMEROTA: And thanks, everyone, for watching. Our coverage continues.