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CNN TONIGHT: FDA Authorizes First Oral Antiviral Pill To Treat COVID; School Closures Across U.S. Mount Amid Omicron Surge; Biden Reiterates Plans To Run In 2024, Says A Trump Rematch Would "Increase The Prospect". Aired 9-10p ET

Aired December 22, 2021 - 21:00   ET



JOHN BERMAN, CNN HOST: A new body cam footage showed the miraculous rescue, of two babies, who were blown away, by the storm.








BERMAN: Two Hopkins County Sheriff's officers rescuing the 15-month- old and 3-month old babies, who were found inside a bathtub.

According to the baby's grandmother, when the tornado came bearing down, she put them in the tub, with a blanket, pillow and Bible. She held on to the tub. But it was lifted away by the tornado.

After it passed, she found two officers, who helped search for her grandchildren. Both babies survived. One was taken to the hospital, for a head injury. Amazing!

The news continues. So, let's hand it over to Michael Smerconish, and CNN TONIGHT.

MICHAEL SMERCONISH, CNN HOST: Incredible story! John, thank you so much.

I am Michael Smerconish. And welcome to CNN TONIGHT.

A trifecta of good news, this Wednesday evening. We're going to take apart this potentially game-changing COVID pill, authorized by the FDA today. And take hold of this encouraging new data that appears to show Omicron might not be as ominous as it sounds. And also, taking this very rare moment of harmony, between Presidents Biden and Trump, in our Pandemic fight. Never say never!

This country could use some doses of good news, as we now see Omicron, all over the map, of the United States. The variant that arrived 22 days ago has spread to all 50 States, along with D.C. and Puerto Rico. But that shouldn't necessarily be as frightening as it looks.

Dr. Fauci highlighted data today, from Africa, where Omicron was first detected that shows this new COVID strain poses a 70 percent lower risk of severe disease than the Delta variant. Fauci also pointed to data from Scotland appears to back it up. That study found a two- thirds reduction, in the risk of COVID hospitalization, compared with Delta.

So, that's welcome news, because maybe as Omicron spreads like wildfire, with a much less severe punch, than Delta, we'll be more likely, as a society, to develop some sort of herd immunity, although nothing is for certain, with this virus.

And, on top of that, the first ever pill, to treat COVID-19, has just been authorized, by the Food and Drug Administration. It's an oral antiviral, developed by Pfizer. It's called PAXLOVID, proven to significantly reduce hospitalizations, and death, and will be available, sometime next month.

How does it work? People infected with the virus, vaccinated or not, who are symptomatic, can take it, at home, before they get sick enough, to be hospitalized. It's been green-lighted, for children aged 12 and older, as well.

A similar pill, developed by Merck, still under review.

So, this is great, and a credit, once again, to science and scientists, developing these life-saving tools. It comes, as we learn COVID was the third leading cause of death, in America, last year. Heart disease, number one, then, cancer, then, COVID, accounting for more than 10 percent, of all the deaths, in 2020.

The Pfizer pill won't prevent infection, of course, neither do vaccines, 100 percent. But shots are still our most crucial protection. And President Biden keeps hitting a concrete wall, on that front, with the unvaccinated.

We showed you this alarming Kaiser survey, last night. 48 percent of unvaxxed adults say, nothing, nada, zilch, will ever convince them, to get the shot. One of the respondents, saying, quote, "Jesus himself would have to come down from Heaven," and speak with her personally, in order to get her vaccinated.

We could use some divine intervention, right about now, right? Too many still won't get vaccinated. Could that change, now that Trump and Biden are playing nice with one another?

I thought one of the most persuasive moments, of President Biden's plea, to the unvaxxed, yesterday, was when he tipped his hat to his predecessor.


JOE BIDEN, PRESIDENT, UNITED STATES OF AMERICA: Thanks to the prior administration, and our scientific community, America is one of the first countries to get the vaccine.

Just the other day, former President Trump announced he had gotten his booster shot. It may be one of the few things he and I agree on.


SMERCONISH: This wasn't the first time that Biden has acknowledged, the vaccines were developed, on Trump's watch. But it definitely caught Trump's attention. Here's what he told Fox News, in response to Biden giving him credit.

He said, quote, "I'm very appreciative of that. I was surprised to hear it. I think it was a terrific thing. And I think it makes a lot of people happy. I think he did something very good. You know, it has to be a process of healing in this country. And that will help a lot."

Would it have made any difference, if Trump and Biden had played nice with one another, all along? One can only wonder!

Vaccine politics have no doubt held this country back, from beating COVID back. But should we be a lot more hopeful tonight, with this new data, on Omicron's severity, and this new COVID pill, coming to pharmacies, nationwide?

Joining me now is Dr. Peter Hotez, an infectious disease expert, at Baylor College of Medicine.


Great to see you, Doctor. Here's a concern that I have. What now stops the unvaccinated, from saying, "I'm not going to get vaccinated. After all, there's now a pill, on the horizon."


First of all, the drug's not going to be ready, possibly in time for this Omicron wave. Production is only really starting now. We're not going to really get up to speed, for another few months. So, it's not going to really help us that much, during this Omicron wave.

And the second point is, you've got to get treated very early. You have to take this medicine, the minute you have symptoms, number one, and/or within a short time afterwards. And you have to have easy access to diagnosis, in order to be eligible to get it. And we don't have diagnostic testing up to speed.

So, eventually, PAXLOVID is going to be a very important tool, in combating the Pandemic, not only in the United States, but globally. But it's going to take a while. So, let's revisit this question, in a few months. But right now, it's not ready for prime time.

SMERCONISH: OK. One follow-up, because this is my survey question tonight. Should vax status, be taken into account, when that pill is rolled out?

Hypothetical. Two patients, both in need. One vaccinated. One unvaccinated. Should that be taken into consideration? I mean, I would say why would we reward the bad actor? The bad actor in that hypothetical, being the person, who had foregone getting vaccinated?

HOTEZ: Well, hopefully, when the medicine is here, in abundance, we won't have to make those kinds of terrible decisions.

But here's why I do not think we should consider vaccination status. Two nights ago, we had our first Omicron death, here in Houston. And this was an individual, who had been infected, and recovered, chose not to get vaccinated, and got reinfected with Omicron, and then lost his life.

And what it's telling us is that partial immunity, partial protection, is by no means a guarantee that you're not going to lose your life, from COVID-19. So, it's going to be very hard to factor in that into decision-making.

And then, what do you mean by vaccination? One dose? Two doses? All three doses? How would you ever operationalize it? So, I think it's going to be too unwieldy. So, I would say, no.

SMERCONISH: You heard me share some of the latest data, about the punch, packed by Omicron. Hopefully less severe than Delta. I have to go to great lengths to say not yet peer-reviewed. What do you make nevertheless, of that information?

HOTEZ: So, I'd be very careful about it, Michael. And here's why. Both in South Africa, and in the U.K., there, Omicron came right - dovetailed right onto their big Delta wave. So, it's not like it went down, and now it's going up, like here in the United States.

So, a lot of the people, who got Omicron, were actually Omicron reinfections, upon Delta. That may have mitigated some of the severity of the illness, and give the false impression that it's less severe.

What I've not seen is data among those, who have not been vaccinated, nor infected and recovered. I think there's a good possibility Omicron could be just as bad an actor as Delta, or any of the other variants, which again, is a reminder, to get people vaccinated.

SMERCONISH: Doctor, I wonder if someone, who's reluctant, to take a Pfizer vaccine, will be willing, to take a Pfizer pill, when it's available?

HOTEZ: That's a good question. Obviously, I don't know the answer. It may not be so straightforward.

Because remember, the individuals, who are refusing to get vaccinated, many of them are deeply dug in, and also have the false understanding, about Ivermectin, and think Ivermectin is the superior drug, and are still committed to Ivermectin.

So, trying to convince them now, to take PAXLOVID, it would seem obvious, to most of us, but that's not a guarantee. And I think we're going to see a lot of people also not buy into PAXLOVID, as well, tragically.

SMERCONISH: Final question. You yourself have some news tonight. You're at work, on a vaccine, that could help undeveloped countries. Tell us briefly about it.

HOTEZ: Yes, we're very excited. So, at our Texas Children's Center for Vaccine Development, at Baylor College of Medicine, we've been developing low-cost recombinant protein vaccines, the ones that the big pharma companies are not interested in making, for parasitic infections, but for diseases like Chagas disease, and schistosomiasis.

And then, about a decade ago, we began working on Coronavirus vaccines. And now, we've been able to pivot that program, around, to COVID-19, and developed a low-cost recombinant protein vaccine. Same technology, as used to make the Hepatitis B vaccine, which parents have been giving to their kids, for the last 40 years. It's microbial fermentation in yeast.


We licensed it, without a patent, with no strings attached, to Biological E., in India. And they're moving forward, hopefully soon, to release the vaccine, for emergency use, with an advanced purchase commitment, of 300 million doses, from the Indian government. And we've also licensed that to Indonesia, to Bangladesh, to Botswana.

So, if all the stars align, we're hoping, we can make a big contribution, to fixing this horrible, horrible global vaccine equity gap.

SMERCONISH: Look, I lack your expertise and knowledge. But I've made the point here, several times over.

We're only as strong as our weakest link. This is a global issue. And if we get ahead of the curve, here in the United States, but they're still behind it, in the underdeveloped world, then we're still in a tough spot.

Dr. Peter Hotez, thank you so much, for your time.

HOTEZ: And remember, Michael, all of our variants have arisen, out of unvaccinated populations. So, until we fix this problem, we're going to continue to have new variants. So, I appreciate that remark.

SMERCONISH: Yes, thank you for that.

Hey, I mentioned tonight's survey question, at In fact, I got Dr. Hotez, to answer it already.

Should vaccination status, be a factor, when distributing limited supply of the new COVID pill? Yes or no? His is a "No" vote. I'm not with him on that. I'd like to see it considered. Make up your own mind. Go to my website. Cast a ballot. I'll give you the result, at the end of the hour.

And, of course, we'll go through some social media, as the program unfolds. What do we have that's come in so far?

"If the efficacy of the COVID pill is high enough, wouldn't it bring the fatality rate down low enough that we could get back to some sense of normalcy?"

Jim, I should have kept the doctor around, to answer that. I would like to think, and I actually went through this, with Dr. Ashish Jha, last night, from Brown, that a silver lining, to Omicron, might be that it's spreading rapidly, but packs less of a punch.

Again, the data is not yet peer-reviewed. So, more people are going to get it, and hopefully put us - and put us closer, to a position, of herd immunity.

Severe or not, Omicron dealing another big blow to schools, nationwide, sending some students, home again, for remote learning. My next guest thinks that should be off the table. He argues the costs of closing schools are high, and risks of severe physical illness, for kids, is low.

Harvard disease expert, Joseph Allen, joins me next.



SMERCONISH: Should kids be kept out of school, amid this Omicron wave? It's a debate that schools, all over, are grappling with, right now.

So far, data from the Department of Education shows that 85 K through 12 school districts, across the country, are hybrid, as of December 12. Some turned virtual, only recently, amid the rising Omicron cases.

And the same goes for colleges, and universities. At least 15, from Stanford and UCLA, to Temple and Columbia, all have chosen to go virtual, for final exams, or to start the next semester, online.

But is this really necessary?

My next guest says, "We learned our lesson last year. Do not close the schools." Joseph Allen is Associate Professor and Director of the "Healthy Buildings" Program, at Harvard School of Public Health, and he joins me now.

Professor, in very simplistic terms, you're saying, "Worse outcomes await kids, if they're out of school, than if they are in school." Explain.


It is that simple. We shouldn't close schools, because the risk to kids, talking about five, to the elementary, and middle school, and high school, students, is low, from this virus.

And I'll put some numbers to this. The risk of hospitalization has hovered around one per 100,000, throughout the entire Pandemic, through the origin strain, the Alpha strain, even, through the Delta strain. And early evidence shows that this is about the same thing for Omicron.

The deaths, several major studies, have shown, hover around one to two per million. The American Academy of Pediatrics released a report two weeks ago that called hospitalizations and deaths, in kids, quote- unquote, "Uncommon."

On the flip side of this, the risks of being out of school, are severe, and they're accumulating fast.

We have lost - kids have lost five months. They're behind five months, in reading, and - and math, sorry, math scores, just since the Pandemic and remote-learning has started. 1 million kids were totally unaccounted for, expected to be in school, and disappeared from the system.

Schools are our first chance, to detect neglect and abuse. New York City did a study that showed in just three months of school closures, 8,000 reports of abuse and neglect were expected that never came in. They extrapolated this to the country. It's 300,000 reports of neglect and abuse that never came in.

Kids rely on schools for food. 14 million kids weren't getting the food they needed, when schools closed. This extends to women, in particular, working women, who have borne the disproportionate burden, of kids being home. The labor drop - labor participation drop, for women, grew another 5 percent.

So, the costs are severe, when kids are out of school, across the economy, and to their learning and well-being. And also, we know, importantly, that their risk from the virus has remained low. And that's been consistent throughout the entire Pandemic.

SMERCONISH: So, here's something that I took away, from the essay that you published, in "The Times."

It seems like, in the first go-around, spring of 2020, all of the concern was on the side of the ledger, for physical health.

And we've learned so much, since then now, to factor in the mental health costs, of all of this, the emotional tab that now has to be paid by young people that's frankly incalculable. So many other things, racial inequality that you've pointed out.

And so now, as we balance, the priorities, things have shifted. That's where you're coming from? G. ALLEN: Yes, that's entirely right. And let's not forget, the best thing, in this whole scenario, is that we now have a safe and effective vaccine that has been available to all adults, in schools, for at least eight months, at this point.

I'm in favor of mandates, for vaccines, for all adults in schools. When New York City did this, they moved from 70 percent vaccinated, up to 95 percent. We also have a vaccine available, for kids, 5-year-olds up to 18-year-olds, all the school-aged kids, and college kids, for that matter.


G. ALLEN: So, not only are the risk low for kids, even before this. We now have a safe and effective vaccine, widely available.


SMERCONISH: Do you also see COVID, as having been a wake-up call, for parents that in certain circumstances, their education model, their school, their school system, wasn't working? And now, they're going to keep kids, at home, for homeschooling, or maybe look at a charter model that heretofore they never would have done?

G. ALLEN: I think there's no doubt. I'm a parent of three kids myself. I've seen - we've seen, gross dysfunction, in our school system, over the past two years. I mean, stimulus money has been there, for the past two years.

We had another influx of stimulus money. Still, I wrote this with Celine Gounder, in "The Hill," recently. Millions, tens of millions of dollars, still have not been spent. This is emergency stimulus money for schools that's still on the sidelines.

Why is that, not spent, to improve the school infrastructure, improve ventilation and filtration, bring in - use it to backup and bolster the workforce? And it's just hasn't been spent. So, there's been a lot of dysfunction.

The science has been actually very clear, since the summer of 2020, that we could get schools open, keep adults and kids safe, and avoid the worst fate, of having these kids out of school.

We've made bad decisions, last year. And what I'm concerned is that we see schools closing again, the dominoes are in danger of falling.

SMERCONISH: I hear you.

G. ALLEN: That is a terrible mistake.

SMERCONISH: I'm just making a related point that, when the dust settles from this, which I hope is sooner than later, I don't think that the education models, as we knew them, will continue to exist, in many circumstances.

Professor Allen, thank you so much for coming back. I appreciate it. G. ALLEN: Thanks for having me.

SMERCONISH: OK. More social media reaction, coming in, as the program progresses, Vaughn. What else do we have?

"So basically, he finally realized what President Trump and Conservatives have known and said all along. No lockdowns. Keep the kids in school without masks."

Freedom, I don't know that he presented it, in political terms.

I can only say this, that, for the last 18 months or so, as a parent of four, three of whom, are still my responsibility, my wife and I loved having them at home. They're either in college or grad-school level. But the cost, on each of their development, is something that we see both, within them, and within their friend groups, and within their orbit.

So, I completely understand the idea that initially, it was batten down the hatches, protect the physical well-being, of all young Americans. But that's no longer the way I see it. I see it the way that he balances that scale.

Developing news tonight, on another front, from President Biden. Will he run for reelection? And how does Donald Trump factor into his thinking? His answers, to both, are coming up.

Plus, the over-under, from political analyst, Ron Brownstein. What does he say? That's next.



SMERCONISH: New tonight, President Joe Biden, affirming his intention, to be on the ballot, in 2024.


DAVID MUIR, ABC NEWS HOST, "WORLD NEWS TONIGHT": Do you plan to run for reelection?

BIDEN: Yes. But look, I'm a great respecter of fate. Fate has intervened in my life many, many times. If I'm in the health I'm in now, if I'm in good health, then, in fact, I would run again.


SMERCONISH: He even addressed the idea of a 2020 Rematch.


MUIR: If that means a rematch against Donald Trump?

BIDEN: You're trying to tempt me now! Sure. Why would I not run against Donald Trump being the nominee? That'd increase the prospect of running.


SMERCONISH: Just last week, "New York Times" Opinion Columnist, Bret Stephens, wrote that this is exactly what Joe Biden shouldn't do, and shouldn't be saying.

This weekend, Stephens, known for his conservative views, told me, why he thinks, this hurts Biden's party.


BRET STEPHENS, OPINION COLUMNIST, THE NEW YORK TIMES: There's already a whisper campaign, out there, about who, in the Democratic Party, might succeed him.

But that whisper campaign is not really allowed, to take off, in any way that no one is allowed to - no one in the Democratic Party can openly say that they're considering a run for the presidency. And we now live in a world, Michael, where runs for presidency, begin four years - four years early.


SMERCONISH: Few know the impact, this plan to run, will have, better than my next guest, Ron Brownstein.

Hey, Ron, great to see you.

That sound you hear, is champagne being popped, at the Naval Observatory, home of Vice President Kamala Harris, because I think this is great for her. It keeps the otherwise Democratic field frozen.

What do you think?

RON BROWNSTEIN, CNN SENIOR POLITICAL ANALYST, SENIOR EDITOR, THE ATLANTIC: Yes. Look, I take President Biden, at his word. I mean, with that precondition, if he's healthy, I think he will run.

I could argue to you, in fact that the most likely economic and political dynamics, of the next couple years, make it more likely that he runs, and that Trump runs, in this respect.

The history of midterm elections, first midterms, especially, is they're pretty tough, for the party holding the White House. Republicans only need five seats to pick up the House. There're only four midterm elections, Michael, since the Civil War, in which the party out of the White House hasn't won at least five seats.

So, if Republicans have a good day, next November, which is more likely than not, you've got to think that's going to encourage Donald Trump, to run, on the theory that Biden is wounded. And it's a pretty straight path, to the White House. It'll make it tougher, for any other Republican, to challenge him, for the nomination.

But the history of the midterm, predicting the next general election, is actually quite mixed. I mean, there are occasions, like 1946, or '66, or '74, where a bad midterm foreshadowed a loss, for the president's party, and holding the White House, in the next election.

But there are just as many cases, where the president's party, did bad, in the midterm. And then, the economy picks up, in the second half of his term. His approval rating rises. And his position is much stronger than it looks, the morning after the midterm. That was the case with Reagan, and Clinton, and Obama.


So, I could imagine a world, in which, next November encourages Trump to run. And, in the next 18 months or so, if inflation recedes, and Biden's position improves, that, encourages him to run. And we get the exact rematch that they were talking about, tonight.

SMERCONISH: I'll meet you halfway.

BROWNSTEIN: How's that?

SMERCONISH: Well, I'll meet you halfway. I could see the scenario, where - I mean, Trump has, the Republicans have, history, you know this better than I do, on their side. I think 26 would be the average number of seat gain.


SMERCONISH: So, I can totally see a scenario, where Republicans take the House, and then Trump takes credit for it. And, yes, he runs, and becomes the nominee.


SMERCONISH: But won't that raise a drumbeat, among Democrats that they've got to make a change, at the top of the ticket?

BROWNSTEIN: Only if Biden is still weak, right? I mean, what happened - I mean, if you look at - and that is possible.

But it's also possible that if you look at the underlying strength, of the economy, and the growth that is occurring, and the growth that will be seeded, if he can get Manchin, over the line, and pass his Build Back Better Act?

I mean, what that says is that, if that growth is there, and they are right, that inflation recedes, at some point, in his term, Biden's position could look a lot better, six months, after the midterm, than it does on the midterm day.

I mean, that's really what happened to Reagan, and Clinton, and Obama. They came in at a moment, of economic turbulence. Things didn't turn around, fast enough, in the eyes of the voters. Their party was shellacked in the midterm.

And then, in the second half of their term, the economy started to improve. Some of their policies that they passed, initially, the effect began to be felt more widely. And they significantly solidified their position. And then, all of them, won reelection, pretty comfortably, especially Reagan.

So, I'm not saying Biden is guaranteed on that trajectory. I'm just saying it is a very real precedent that we've seen, in three presidents, in the last 40 years, have that bad midterm, and then have the economy kind of lift them, along with some political developments, to a pretty comfortable reelection. So, I don't think there's going to be--

SMERCONISH: I totally--

BROWNSTEIN: Yes, there will be a clamor.

SMERCONISH: OK. I totally get it.

BROWNSTEIN: Potentially, to get rid of Biden, after the midterm. But that doesn't mean, they will feel that way, six months or eight months, after the midterm.

SMERCONISH: I totally get it. I just have to say, and I hope I'm not being indelicate that that analysis does not factor in the age issue. And it's an issue.


SMERCONISH: Hey, Ron? Quick final question.


SMERCONISH: Because you were invited here under false pretenses. We were supposed to discuss whether Joe Manchin ever becomes a Republican. And then came this breaking news.


SMERCONISH: So, here's what I will ask you, a quick final question.


SMERCONISH: What has a stronger likelihood that Manchin becomes an R, or that Biden runs for reelection?

BROWNSTEIN: Biden runs for reelection.

I think Manchin becoming an R, less influence, more risk. He voted to convict Trump twice. He voted against Amy Coney Barrett. He voted against the Trump tax cuts. He voted for maintaining the Affordable Care Act. Does he want to put all that up, in a Republican primary, in West Virginia?

Also, he is now the 50th vote, on everything. If he becomes a Republican?

SMERCONISH: Right. BROWNSTEIN: He's the 51st Republican. Less leverage, more risk. I think he either stays a Democrat, or becomes an Independent. I could see that, before 2024.

And then, the question is, does he see any value in tipping the majority of the Republicans? And I can't see where the advantage is in that for him? Because right now, he is in the catbird seat.

SMERCONISH: OK. All of that--

BROWNSTEIN: All the roads lead to Joe Manchin.

SMERCONISH: All of that makes total sense. Ron Brownstein, thank you so much. Appreciate it.

BROWNSTEIN: I tried! Thank you.

SMERCONISH: Thanks, Ron.

Social media, what do we have? This just came in.

"Media starts talking about this way too early. Joe has not even been in office for a full year. Talking about Trump running should not even be happening, especially when we find out more information about what really happened," - well, Sharon? You might not want to hear it. But you can't ignore it either.

I mean, yesterday, and we referenced this last night, Trump issues a statement, and says he'll see on January 6. Because, as Nancy Pelosi wants it to be marked with a solemn occasion, Donald Trump has other plans.

So, that presents a very interesting question, doesn't it? What level of coverage do you give him, for whatever it is, he says, on January 6? Luckily, I don't have to make that decision here.

Don't forget tonight's survey question, at I discussed this with Dr. Hotez, earlier. Really interesting question.

Should vaccination status be a factor when distributing limited supply of the new COVID pill? Right?

So, great news tonight. Pfizer's got this new pill. But they're going to be rolled out, without enough supply, for all who need them. So, should we look at a scenario, where we determine the need, and whether someone's vaxxed or unvaxxed? That's what I'm asking. Go to my website, and cast a ballot on the question.

Coming up, when does tough on crime go too far? A truck driver, set to serve a 110-year prison sentence, after a deadly crash in Colorado. Wasn't drunk. Wasn't high. And even the judge who sentenced him is questioning the punishment.

But a former Colorado prosecutor, George Brauchler, is here to tell me, why he's not sympathetic, about the driver's fate. And that's next. [21:35:00]


SMERCONISH: A man essentially got a life sentence, after he killed four people. So, why did nearly 5 million people, sign a petition, to lessen it?

The driver's tearful apology couldn't stop the 110-year sentence, dictated by state law. The Cuban immigrant was behind the wheel of a semi that caused this wreck, outside of Denver, in 2019. Four people died. Six were hurt.

Mr. Aguilera-Mederos was 23-years-old, when his brakes, went out, on I-70. He knew his brakes, were a problem, before the crash. He even called another driver, for help, with that problem. And yet, he still drove past a runaway truck ramp, after losing control.

His case sparked public outcry, over the sentence that even the judge said was too much. The way the law in Colorado was written, and how the 27 counts were stacked up, 110 years, is actually the minimum sentence. Now, even the D.A., whose office brought the case, wants the case, reconsidered.

My next guest knows the law, and the issues that led us here. George Brauchler, is a former district attorney, for Colorado's 18th Judicial District.

Counselor, thank you for being here. What went on? Was he overcharged?



There was a prior district attorney - Colorado is one of the only states in the country, in fact the only state that has term limits, for district attorneys. And that may have played a small role here, as well, as more of these D.A.'s races become politicized.

The prior D.A. had charged it. The new D.A., who'd gotten elected, and took office, in January, of this year, had every bit of authority, in her disposal, to change the charges, dismiss the case, reduce the charges, pursue some alternative outcome, but chose to stay the course.

These are charges that carry mandatory minimums, and mandatory consecutives, based on the nature of the crimes, themselves.

I think one of the things that I've noticed, about the coverage of this case, and the great deal of sympathy that pours out, for this driver, is that people don't appreciate that he was so remorseful at the time that he was charged with these big, big crimes that he came to the table, and offered to plead guilty, only to a traffic ticket, for what he'd done that day. That makes him seem a lot less sympathetic to me. SMERCONISH: Well, I hear the point. But he's got a right to a trial, right? I mean, we can't - we can't hold him accountable, because through his lawyer, he exercised his Sixth Amendment right.

BRAUCHLER: No, I don't think that's what we're doing.

And let's be clear about this, too. It feels like the Sixth Amendment is the only one, where we say, "Hey, we can't judge you, for exercising your right, rather than give you the benefit, of having come in, and taken responsibility, for your conduct, like 99.9 percent of everyone else."

We judge people, for how they exercise their First Amendment rights, their Second Amendment rights.

And, in this particular case, if this guy was truly remorseful, for how he felt, and accepted what he had done, had led to the death of these people, why not come in and have a negotiation that made sense, like "I'll do five years. I'll do 10 years. I'll do 20 years."

I mean, in no way am I telling you 110 years is the appropriate sentence here. But when this guy kills four people, sets six others on fire, with life-changing injuries, and then shows up to say, "I'll take points on my license," that ain't sympathetic.

SMERCONISH: Yes. But Counselor, I think you're trying to hold him accountable, for what sounds like, according to you, was some bad lawyering.

Look, I get that you're not one of the 5 million, who's signing that petition. I don't know if I would either. But what do you think is the appropriate outcome?

BRAUCHLER: I think he needs to go to prison. I think that when you get to the point, in the State of Colorado, where you are good for four souls, wiped off the planet Earth, you get into some serious prison time.

Now, in no way does that mean 110 years. And frankly, the other thing that people don't know is in Colorado, every number that comes out of a judge's mouth is fake. 110 years is really probably less than 50. And even that's probably too strong here.

But remember that this guy does not ever say, "I'm willing to take any time, in prison, for what I've done." That may be a function, may be, a function of his attorney.

But let's be clear here too. This guy testified. He got his story out, in front of a jury, of 12 people that he helped pick. And those 12 people didn't find that he had an accident. They didn't find that he was negligent. They didn't find that he was reckless.

What they found was he acted with extreme indifference, to the value of human life, by engaging in conduct that created a grave risk of death, to others. That is far more than just "Oops, my brakes went out!" SMERCONISH: Isn't this the outcome that you get, when legislators take away discretion, from judges? I mean, I can just see the scenario here.

This is the sort of a case, where somebody runs for office, and they thump their chest, and they say, "We're going to go after these liberal judges. We're going to not allow them to give lax sentences."

And then, you get a judge, in this case, who wants to have discretion, but just doesn't.

BRAUCHLER: No, I don't think so. And I say that because the birth of these mandatory minimum sentences, and these mandatory consecutive sentence, was the product of poor judging, to begin with.

So, for instance, back in the day, you could have widely disparate sentences, for people, on heinous crimes of violence, based on where you lived, the color of your skin. And the legislature stepped in, and said, "Well we're not going to do that. If this crime has any value, we're going to set a floor to it."

And when it came to victims, we saw judges imposing sentences that treated five victims, as if it was a crime that occurred with one victim. I don't think that's the issue here.

I think the issue here and the one that people are just now starting to drill down on, is the discretion, exercised by the district attorney.

There's a real question here as to how somebody could allow a case to move forward, with these heavy, heavy-handed charges, tell their prosecutors, to go into court, and get a victory. They secure that victory.

And then, two months later, the mandatory minimum sentence, which was known at the time the charges were filed, happens, and only because of a public out - they blow up, they end up saying, "You know what? Maybe we should reconsider that."

There's real questions there that need to be answered, by the D.A. These are important valuable tools to prosecutors. But it doesn't mean that--


SMERCONISH: I hear you. I hear what you're saying. Look, like you, my primary sympathy rests, with the four families. Those are the folks that I'm thinking of, at the top of the list.

BRAUCHLER: And the injured.

SMERCONISH: But, by the same token, and I think you acknowledge this, this is not - and the six injured. And the six injured.


SMERCONISH: But this is not the right outcome. And something's got to get done about it.

George Brauchler, thank you. Appreciate it. I've been interested in this case.

BRAUCHLER: Thanks for having me.

SMERCONISH: I wanted local insight. And you delivered. Thank you.

BRAUCHLER: Thank you so much, sir. Thanks for having me on.

SMERCONISH: Another NBA game canceled tonight, over COVID. But let's keep an eye on the big picture.

Bob Costas is back tonight. We'll look at how sports can set an example, right now, that COVID help all of us win. We'll do that next.


SMERCONISH: Professional sports remain the proverbial canary in the coal mine of COVID.

The Pandemic became real, for many, on March 22, of 2020, in part because that's the night the President addressed the nation. But maybe more, because the NBA shut down that same night.

Now, leagues are once again trying to chart a path, from Pandemic to endemic.

Bob Costas is back, to continue our conversation, from last night, about what the future looks like.

OK, Bob. Where were we?


BOB COSTAS, CNN CONTRIBUTOR: Well, even since, we left it off, Texas A&M is unable to field the squad. They can't play in the Gator Bowl.

The Bowl Championship Series announces they're down to four teams, Alabama, Cincinnati, Michigan and Georgia.

But if any of those teams can't play, on the semi-final date, they will forfeit, and the other team will move on. And if they get to the championship game, and one of those teams can't play, then they'll forfeit. And without playing a game, there'll be a national champion, declared.

The National Hockey League, as best we understand it, has only four unvaccinated players, among their hundreds of players. And yet, their season has been interrupted.

And the Omicron variant will wreak havoc, upon the Olympics. That's obvious. The NHL is not sending any players.

And athletes and other sports, from all around the world, may test positive, despite being asymptomatic, and may not even get to enter China. Or if they test positive, again, while being asymptomatic, they may be quarantined, in China, for a considerable length of time, before going home, to their home nations.

Now, in light of all this--


COSTAS: --and let me just preface this by saying--

SMERCONISH: I was just going to say, you were--

COSTAS: --you can debate - yes?

SMERCONISH: --you were setting forth a prescription. I mean, you like, have a plan, as to what now ought to take place. Lay it out.

COSTAS: Well, I don't know that I have the specifics of it. But clearly, vaccination is the key here. And we might as well call it what it is. This anti-vax stuff is a belligerent idiocy. And it flies in the face of everything we know.

We can debate the efficacy of masks. We can debate whether kids should be in school or learn virtually. But the evidence about vaccines is overwhelming. The hospitalization rate, the serious illnesses, and the deaths, all lean heavily, in the direction of those, who are unvaccinated.

Now, what to do, about those, who are vaccinated, especially healthy, young, fit athletes? Adam Silver and the NBA have always been forward- looking, when it comes to this. As you just said, they were the first league to shut down. They got through the 2020 season, successfully, in a bubble. So, they're not backward-looking, on this.

But Adam Silver has said, "Look, this is going to be with us for a while. The question is how do we deal with this? Do we constantly stop and start?"

And, to my mind, the players associations have to get together. And they have to convince not 95 percent, but 100 percent, of the players, in all the major sports, to be fully vaccinated.

And beyond that - and this would be easy for the teams, and the leagues, to administer. They have the resources. And they have a relatively small group of people to deal with.

If boosters become available, and the consensus is that you need another booster, and one after that, whatever is the state-of-the-art, whatever is the abundance of caution-course to take, that's what they should do.

The boosters, making sure that every team facility has the proper ventilation, and filtration, all of those things. And then, if you have all of that in place, that 100 percent vaccination, and these young healthy athletes, almost none of whom, have wound up in the hospital, let alone died, among professional athletes, we have to recognize that fact. Even as we roll our eyes, about people, who won't get vaccinated, you have to recognize the other fact. Young, healthy professional athletes are not dying of COVID. At least, to this point, those, athletes should, if every proper precaution has been taken.

And now you get to the point, where someone tests positive, but they're asymptomatic, or only mildly symptomatic, there has to be a way, for them to return to play quickly. Think of what could possibly--

SMERCONISH: I have a concern.

COSTAS: --happen with the NFL. And this is what - go ahead.

SMERCONISH: I have a concern. OK.

COSTAS: Go ahead.

SMERCONISH: So, first of all, I think I misspoke.


SMERCONISH: I think the NBA shut down on March 11.

Anyway, at the outset of tonight's program.


SMERCONISH: I was talking to Dr. Hotez, about the Pfizer pill, this miracle pill, which is now finally on the horizon. I embrace everything you said. I love the way you said it.

But I'm worried that the unvaxxed, among us, including the athletes, are now going to say, "Why am I going to get vaxxed now? I'll just take that pill, when it's made available."

You get the final word.

COSTAS: Well, one of the things they should do? The leagues have some control over their players, some control over the conditions of employment.

And assuming they get to 100 percent vaccination, or something very, very close to it, what I would like to see, all of the leagues, and all the teams do, is flood the airwaves with, and the digital world, with PSAs, that say--


COSTAS: --"Look, the reason we're able to carry on, with relative normalcy, is because we've done everything that can be done, every sensible thing that can be done. And we implore you, our fans, to follow our lead. This is the way to get closer to normal. Please, in the name of God, get vaccinated."

SMERCONISH: Love it! Great suggestion! COSTAS: And boosted.

SMERCONISH: I wish you a merry Christmas - I wish you a Merry Christmas, except I'm hoping you'll come back, tomorrow night, and make it a hat-trick. Thank you, Bob Costas.


COSTAS: Thank you, Michael.

SMERCONISH: We'll be right back, with the results of tonight's survey question.

Did you go to, and cast your ballot? If not, go there right now. I want to know, whether the vaxxed, and the unvaxxed, should be treated the same, when the Pfizer pill, is made available?

Go vote. I'll give you the result. And some social media.

Yes, there it is. "Should vaccination status be a factor when distributing limited supply of the new COVID pill?"

Back in a moment.


SMERCONISH: Here are the results, of tonight's survey question, at

"Should vaccination status be a factor with distributing limited supply of the new COVID pill?"

Survey says, 73 percent say, yes. I'm in that category. 27 percent say, no.

You know what? I don't even have time for social media, tonight, because Laura Coates is in the on-deck circle. And her program, on behalf of Don Lemon, starts right now.

LAURA COATES, CNN HOST: Thanks, Michael. What an interesting question!