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What Comes Next In The Proceedings Of Donald Trump's Second Impeachment?; Will The Senate Convict Trump?; Sen. Amy Klobuchar (D- MN) Is Interviewed On Inauguration Planning; Can The Senate Constitutionally Try A Former President?; Nation On High Alert. Aired 9-10a ET

Aired January 16, 2021 - 09:00   ET

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

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MICHAEL SMERCONISH, CNN HOST: The impeachment part was easy, but now what? I'm Michael Smerconish in Philadelphia. Donald Trump is now the only American president to have been impeached twice, but like Andrew Johnson and Bill Clinton, he will not be removed from office. There's not enough time for a Senate trial, at least not a fair one.

So what's next? Well, it's complicated, the kind of stuff that could fill flow charts in the offices of Mitch McConnell and Chuck Schumer as they game it all out. There's mine. The Senate will come back into session on Tuesday, the day before the inauguration. Therefore, the most significant punishment for Trump, his removal from office, is off the table, but he still could be precluded from running again.

Article 1, Section 3 of the Constitution says this, "Judgment in cases of impeachment shall not extend further than to removal from office and disqualification to hold and enjoy any office of honor, trust or profit under the United States." That disqualification does not automatically follow conviction. It requires a separate vote. Two- thirds of the Senate is needed for conviction, 67 will be the magic number, requiring 17 Republicans, but only a simple majority is needed for the second vote, a ban from running in the future.

There's no precedent for presidents being disqualified, but there have been other government officials hit with that double whammy. We are headed into uncharted waters in many areas. The biggest question is whether a former president can be tried by the Senate after being impeached.

Legal scholars have reached different conclusions. Harvard's Laurence Tribe wrote for "The Washington Post" this week, "The clear weight of history, original understanding and congressional practice bolsters the case for concluding that the end of Donald Trump's presidency would not end his Senate trial." But Ross Garber from Tulane, who has represented governors facing impeachment, says, "If the framers had intended impeachment for former officials, they would have said so." Both will join me today.

Another ramification of Trump being gone from office by the time of his trial -- who presides? Article 1, Section 3 says when the president of the United States is tried, the Chief Justice shall preside, but Trump won't be the president. So Chief Justice John Roberts' role is unclear. Does it mean, for example, that the president of the Senate, Vice President Kamala Harris, will preside at Donald Trump's Senate impeachment trial? We just don't know.

Another consideration -- the impact of the new president. Joe Biden is eager to get to work next Wednesday. He needs his cabinet members to be confirmed by the Senate as soon as possible, but under Senate rules, impeachment is the only issue the Senate can consider once the trial begins and that's why on Wednesday, the president-elect tweeted in part, "I hope they'll deal with their constitutional responsibilities on impeachment while also working on the other urgent business of this nation."

So must there be a trial? Nothing in the Constitution requires the House to transmit to the Senate its articles of impeachment. Speaker Pelosi can hold them indefinitely and assuming the House does deliver the articles, it's not entirely clear that the Senate must act on them. Again, not spelled out in the Constitution.

Bob Bauer served as White House Counsel to President Obama. He addressed this subject for "Lawfare" in 2019 and said, "It's a logical construct of the Constitution that if the House impeaches, then it would follow that the Senate tries the case."

But he also said this, "The Constitution does not by its express terms direct the Senate to try an impeachment. The House may choose to impeach or not and one can imagine an argument that the Senate is just as free, in the exercise of its own 'sole power,' to decline to try any impeachment that the House elects to vote."

So where does it leave us? First, if and when there is a trial, conviction in the Senate will not be easy. Remember, in the last Senate impeachment trial, there were two counts. One was for abuse of power. The vote was 52/48 for acquittal. Only Mitt Romney broke ranks. The second charge was for obstruction of Congress and the vote for acquittal was 53/47. No GOP senators supported it.

This time, it'll take 17 Republican votes for conviction. All eyes on Mitt Romney, Lisa Murkowski, Ben Sasse, Pat Toomey and Susan Collins, but they'd be only five. If McConnell votes to convict, he could be a sixth and he might be able to cause more to do so, but that's still not 17 and it assumes getting all 50 Democrats to tow the line.

[09:05:01] It raises this question. If it appears unlikely that Democrats can line up the votes for conviction, is it still worth trying Trump? Well, yes, if you believe, as the House voted, that Donald Trump incited insurrection, the epitome of a high crime which also warrants disqualification from his running again. By this logic, he must be tried even if he's not convicted.

Plus, a trial in this case could be not only an opportunity to bury the lie that the election was stolen, but also an opportunity to produce evidence of the impact of the President's words and actions on those who were lawless at the Capitol.

If we don't move forward with a Senate trial, it suggests that the House impeachment process was all just noise and we abandon the 10 Republicans willing to break ranks. Who will do so the next time? And what message would be sent in not prosecuting? Don't commit a high crime or misdemeanor, but if you do it in your final few weeks, hey, we're going to let you slide.

If Trump is not tried and convicted, it raises another possibility, that this human Phoenix, think, "Grab 'em by the P," again rises from the ashes. What if he comes back, wins the nomination and is again elected president? If that happens, many will ask why the Senate didn't convict and disqualify him when it had the chance.

Does that sound far-fetched? Maybe not. A brand new "Axios/Ipsos" poll found that big majorities of Republicans still think Trump was right to challenge his election loss, they support him and don't blame him for the Capital mob and still want him to be the 2024 nominate.

A radio listener of mine, Anthony in San Francisco, on "SiriusXM" suggested that it should be the Republicans who hope for conviction. He argued that Trump is now an albatross, damaged political goods who can't win again, but unless he's convicted and disqualified, will shadow the GOP in both the 2022 mid-terms and the 2024 presidential and maybe that's why McConnell is signaling that he's personally open to the idea of conviction.

So what is the best path forward? From "The Wall Street Journal," "Democrats are now triumphant in Washington. If they really want to calm political tempers, they'll drop an impeachment trial and let Mr. Trump slink away to Florida. They can take the high road and get on with their agenda. Mr. Biden could even take credit for suggesting it and his approval rating would sore. The shame is that Democrats seem so obsessed with Mr. Trump that they are the ones who can't let him go even after they've won."

Then again, there was the "LA Times." Quote, "McConnell said Wednesday that he hasn't decided how he would vote at an impeachment trial following a 'New York Times' report that he was pleased that the House was moving toward impeachment. There's no task more pressing for the Senate at the moment than to hold Trump accountable for the damage inflicted last week and McConnell should do his part to ensure that the trial begins as soon as possible, but if that reckoning must wait until after Trump leaves office, so be it."

Well, that's the right call. It's not fair to President-elect Joe Biden that even as he moves into the White House, Donald Trump will still be a focal point, perhaps robbing Biden temporarily of the attention he needs to launch his administration. However, we have a process and the best course of action is that the process be followed. We can't cure disease by pretending it doesn't exist.

So here is today's survey question at Smerconish.com. Is the impeachment trial worth it even if it appears unlikely that 17 Republicans will vote to convict? From Facebook, some of your thoughts and tweets and comments as they come in during the course of the program. "If there is a trial, he'll be on the TV and the front pages every day. Exactly what he wants." Well, Harvey, that's true, but it depends how it ends, right? I mean, what if it ends, then, with conviction and disqualification? And to the point I made, isn't there something to be gained from the sunlight that will be shown to bury the lie once and for all that the election was stolen through a presentation of evidence and then to address the issue of whether the President's words, his deeds, his actions preceding, during and after the election incited that insurrection?

One more I think from the world of Facebook. What do we have, Catherine? "If Trump could run again and win, the issue is not Trump." Well, Pat, a point that I often make on my radio program. You know, I try and disabuse individuals of the notion that when he leaves office next Wednesday, we've necessarily turned a page because the forces that put him there and the grievances held by 75 million Americans will still be with us and that need to -- they need to be addressed.

[09:10:10] Up ahead, what will the Senate do? So happy that Senator Amy Klobuchar is here.

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SMERCONISH: A source tells CNN the House is expected to send the Senate an article of impeachment against President Trump next week, but when the ball is in the Senate court, it's unclear how they'll run with it. This could unfold in a number of ways, but as far as conviction is concerned, it will require every Senate Democrat and at least 17 Republicans in order for conviction.

So what are the odds of that happening? Joining me now to discuss, Democratic Senator Amy Klobuchar. Senator, thank you so much for being here. I'm curious whether you apply game theory, as I've been trying to do, to the uncertainty of what's to come or is your perspective one of, look, the guy incited a riot and we need to move forward with a trial?

SEN. AMY KLOBUCHAR (D-MN): It's really number two, but that doesn't mean that you can't be strategic and looking at what is best for the American people in how you proceed.

[09:15:01] I think we have to go through this trial. It's as you pointed out earlier that this is a situation where you got a president that incited a riot. You cannot just sweep it under the rug, but guess what, Michael -- you can do three things at once. You can -- and let me explain what's going on right now, which you know.

Americans all over are juggling things. They're juggling their toddlers on their knees and their laptops on their desks, they're juggling their jobs and trying to figure out their healthcare, they're juggling how they're going to pay for prescription drugs and filling their refrigerator. So there is absolutely no reason that we just have to abide by archaic old ways.

We can actually make an agreement in the Senate to be able to do the trial either on weekends, in the afternoon and then at the same time conduct the hearings we must conduct to get Joe Biden's key cabinet positions through, including people like the defense secretary and the attorney general and get the votes on those so we can go forward while passing the pandemic legislation.

A lot of that, as you know, it's a lot of negotiation behind the scenes. Get that done and get a vote. It does require an agreement and I have no reason to believe that if people are of goodwill, we can't get one. We must do all three things at once.

SMERCONISH: How optimistic are you -- I'm sorry that we have a bit of a sound issue and we'll try and work through it, but how optimistic are you that you can get to 17, assuming all Democrats remain in line?

KLOBUCHAR: Well, I am very -- I don't know. I'll be honest with that. I have talked to some of my colleagues, of course, the night of the insurrection and at that point, as you know, only 6 percent of Republicans were voting with Donald Trump or 6 percent of all the senators. We had a 93-vote margin against the people that were trying to upend the election. That is a really good number compared to where the House was and that might put us in a much better position.

SMERCONISH: Do you worry, Senator -- one final question on this process and then I want to talk about the inauguration. Do you worry that if it ends in acquittal, he becomes a martyr? And as I said in my commentary, he's been counted out so many times before, but this early polling suggests that Republicans are sticking with him.

KLOBUCHAR: You know, I don't think we have a choice to go through this or not and not only that. As you point out, once we get the conviction, then he can be banned from running for office again. It is the principle of America that we're going to be celebrating, by the way, at the inauguration, that in America, the president is not king, the law is king.

We must go through this and I'm hoping, given that they personally experienced this horror, that we're going to pick up more votes than you think that we would normally do and there were a number of them that are having regrets, as you could see from Senator Lankford's apology yesterday for their involvement in this in any way, even though he ended up voting on our side to uphold the election.

SMERCONISH: So here's what I'd like to do. You're so important to us and the inauguration is so important to all of us, I want to take a break try and resolve an audio issue and hopefully come back with Senator Amy Klobuchar ...

KLOBUCHAR: Thank you (ph).

SMERCONISH: ... right after this.

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[09:20:00]

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SMERCONISH: I'm back with Democratic Senator Amy Klobuchar. Sorry for the audio issues. I hope they're resolved. I know you're playing a leadership role with regard to Wednesday. Talk to us about how it will look and feel different.

KLOBUCHAR: Sure, Michael. This is a inauguration that has been planned, of course, in the middle of a horrific pandemic, it has been planned two weeks after an insurrection in the Capitol, an attack on the very building that we will be standing in front of and it is in the wake of an impeachment hearing. So I didn't really sign up for that portfolio, nor did Senator Blunt, but what I can tell you is this.

This is going to be a dignified, beautiful ceremony that Joe Biden and Kamala Harris deserve. We cannot let the thugs and the insurrectionists and an angry mob bring us down.

That's why you're seeing more security with significant National Guard and for those that are concerned, I'll tell you this. This event has always been planned and the security is in the care of the Secret Service. It's always that way. We've had inaugurations like President Obama's first inauguration which there were security concerns, but we also had millions of people.

That's not going to happen here because we made the hard decision, as did the President-elect, that we would have a very small crowd to reduce any kind of risk of a super-spreader event, any kind of risk of problems with the coronavirus and that's why there's going to be less of those issues and of course much more emphasis when it comes to the perimeter and the guard and what they're doing. So in that way, it's going to give them the ability to make this a very safe event and they have told us that.

SMERCONISH: Were you already a United States senator at the time that you attended your first inauguration?

KLOBUCHAR: No. I went for the Bill Clinton inauguration way back in 1993, it would have been, and so I have very fond memories. It was cold, I was sitting out with my husband and we -- yes, we're able to go and watch it and of course they had the balls back then and the parade and all of that's going to be done virtually and I do hope that your viewers will spend part of their day and evening watching this because the Biden people have done everything to make this special for the American people.

[09:25:10] The theme of the inauguration is about a determined Democracy and we picked the theme actually before all of this happened, of course, and it's even more meaningful now and you think about that we're going to be in front of that dome where Abraham Lincoln, when he gave his first inaugural address, the dome wasn't even completed.

And people would say to him, hey, you know, why are you spending money in the middle of the Civil War on this Capitol dome? And he basically said as long as the Capitol keeps going up, people will have faith -- I'm paraphrasing this -- that the Union will go on and so I think about that symbolism, how important it's going to be that day on January 20th at 12:01 P.M. when they take their oath.

SMERCONISH: I'm angry about what happened and I'm also saddened. I'm not surprised that you'd been there before. My own short story is that I guess it was January of '81. I had tickets to go to the Reagan inauguration. It's kind of funny because they said standing room only. I didn't know that meant you can stand near the monument. That's how far away you're going to be.

But, Senator, I went -- I went with my dad and through happenstance, we ended up on the east side of the Capitol after the inaugural and here came the entire cabinet and the new president and we were within, you know, a baseball throw and I think about those sort of innocent happenstance moments that now seem lost. You know, like nobody's going to have the opportunity to get up close and personal. It just breaks my heart. You get the final word.

KLOBUCHAR: OK, Michael, but I want to remind you that -- and everyone watching here is that that is happening to everyone in America, whether it is a funeral that people can't have anymore or go to and see their loved ones, a wedding, all of this.

We've had to adjust and what I love about this moment is it's going to be so somber, but also such a celebration because the light at the end of the tunnel, having a competent administration that's going to come in with compassion, get that vaccine out there, get us through this pandemic, get us to a better day, at the same time salvaging our very Democracy.

So I want people to think of it in that spirit. It is an amazing moment and we are going to have every congressional leader, Democrat, Republican, sitting up on that platform -- I know that -- behind the President-elect, making clear that they support this democracy and this transition of power that we've seen for 232 years of democracies. That's why it's so important.

SMERCONISH: OK. I accept everything you've just said. It was beautifully said. Thank you, Senator. Really appreciate it. I'm sorry we had an ...

KLOBUCHAR: OK (ph).

SMERCONISH: ... audio snafu, but come back.

KLOBUCHAR: I will be back when we have better audio. Thank you, Michael.

SMERCONISH: OK. I want to remind everybody, go to the website. It's Smerconish.com. Answer this week's survey question. You certainly know Senator Klobuchar's answer. Is the impeachment trial worth it even if it appears unlikely that 17 Republicans will vote to convict?

Up ahead, the Pentagon has authorized 25,000 National Guard members for inauguration in the wake of the attack on the U.S. Capitol. So what's the nature of the threat against those troops?

Plus, can you be fired after you've left your job or rather tried for impeachment after leaving office? Constitutional law experts, they can't seem to agree. I'll have two of them make their case in just a moment. (BEGIN VIDEO CLIP)

BILL MAHER, HOST, HBO'S REAL TIME WITH BILL MAHER: This is historic for a president to be impeached for a second time. For a second time Trump has been asked to leave office. Three if you count the election. Two impeachments? He's like -- he's like the vaccine. You need -- you need two doses and still no guarantees.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

[09:33:11]

SMERCONISH: The House impeached President Donald J. Trump for a historic second time this week but where Trump will no longer be the president of the United States by the time any Senate trial will conclude. The situation raises an interesting question, can the Senate constitutionally try a former president?

I have guests to argue both sides. For the against, that would be Ross Garber who has represented four U.S. governors facing impeachment. He teaches at Tulane Law School. The for side, Laurence Tribe, constitutional law professor at Harvard Law School who advise House Democrats on President Trump's impeachment probe. Professor Tribe also the author of the book "To End a Presidency: The Power of Impeachment." He recently wrote this op-ed for the "Washington Post," "The Senate can constitutionally hold an impeachment trial after Trump leaves office."

Professor Tribe, first for you. The plain language seems to speak of those who are in office. For example, and I'll put it on the screen, Article 2, Section 4, the president, vice president and all civil officers of the United States shall be removed from office, et cetera, et cetera. Judgment in cases of impeachment shall extend further than to removal of office, says Article 1, Section 3. If they meant after you've left office, why wouldn't they have said so?

LAURENCE TRIBE, CONSTITUTIONAL LAW PROFESSOR, HARVARD LAW SCHOOL: Article 1, Section 3 makes it clear that there are three separate things. There's conviction. There's removal, which is off the table when you're no longer there. And there is disqualification.

The reason they didn't have to say anything more than that was that when they were writing this language the main example of impeachment they had was the British impeachment of a former governor of India, Warren Hastings. He was no longer in office when he was impeached, no problem.

[09:35:02]

If they had thought there was a requirement that you'd be removable in order to be prevented from, again, doing harm, they would have said so. Besides, we've had a history including the really famous impeachment of a very corrupt secretary of war -- William Belknap was his name in 1876. He saw the handwriting on the wall. He knew he was about to impeached. He thought he could get away with everything by resigning first. So he ran to the White House he said, here I tender my resignation. And they said, thanks but we're going to go ahead anyway.

And the Senate voted by a vote of 37-29, I think, that they of course had jurisdiction to conduct an impeachment trial. So in my view, although I respect Profession Garber I think he is really creating an obstacle where there isn't one in the language of the constitution or in its history. And besides if there were the framers would have been crazy because they would have given a clear get out of jail free card, get out of future trouble-free card to any president who just decided to resign before he was convicted.

SMERCONISH: Professor Garber, your response?

ROSS GARBER, IMPEACHMENT LAW PROFESSOR, TULANE UNIVERSITY: Yes, so that is a very creative argument. A of couple things. One is in the Belknap case Secretary Belknap was actually acquitted and those who acquitted him said that the reason they acquitted him was because they didn't believe the Senate had jurisdiction because he was no longer in office. But you'll notice one of the things that Professor Tribe does is he breezes past the actual words of the constitution. He also breezes past the history of impeachments.

So I just want to focus on the actual words of the constitution. So Article 2, Section 4 as you noted, Michael, at the top of the show says the president, vice president and all civil officers of the United States shall be removed from office. The president, vice president and all civil officers, excuse me. As of noon on Wednesday, we are going to have one president. The president will be Joe Biden. Donald Trump will not be the president.

And that phrase the president is used a lot in the constitution. It says the president shall be the commander in chief for the armed forces. As of noon on Wednesday, Donald Trump will not be the president. He will not be the commander in chief for the armed forces. Then there is that phrase, shall be removed. If he is not president, he can't be removed. And so that principle doesn't apply.

And with respect to the English example, there is a lot about the American example that is different from the British precedence. In England, you can be executed in connection with an impeachment proceeding. In America, you can't. And the constitution makes that clear. The worst that they can do to you is removal and disqualification from office.

And one final thing is in our entire history we have never done what Professor Tribe suggests. We have never actually convicted a former public official and barred them from office. It has never happened before.

SMERCONISH: Professor Tribe, go ahead.

TRIBE: Well, I don't find anything persuasive in that with all respect. I mean, Article 2 does say you can't remove someone if they are not an officer. We're not going to try to remove him. Thank goodness he will have been removed by the operation of the very election that he tried to undo not only by twisting Raffensperger's arm but by staging and orchestrating a violent and indeed deadly insurrection.

My point is the other part of the language, Article 1, Section 3, which makes it clear that removal isn't the only thing on the table. Disqualifying from future office is the whole point. It's protection of the country from someone who has shown himself too dangerous to govern. And the Hastings example is the one that they kept pointing to.

Now the fact that the Brits did other things like have a king which we don't or executed people which we said we wouldn't do as a punishment after impeachment has absolutely nothing to do with it. And it is true that in the Belknap case some of those who voted to acquit disagreed with the majority of the Senate about their jurisdiction.

I imagine that some of those who vote to acquit Donald Trump will use the excuse that they don't think the Senate should be having a trial at all. But it will have a trial because it has jurisdiction, the history shows it, the language shows it, and more important the system wouldn't work if you could avoid a trial and possible consequences of a trial just by resigning your office.

[09:40:08]

It wouldn't work. And I don't --

(CROSSTALK)

SMERCONISH: Yes. I want to pick up on that, Professor Tribe, if I may. I want to pick up on that and put on the screen what Professor Tribe wrote on exactly that point in the "Washington Post" and then Mr. Garber can respond.

"If an impeachable officer became immune from trial and conviction upon leaving office, any official seeing conviction as imminent could easily remove the prospect of disqualification simply by resigning moments before the Senate's anticipated verdict."

Respond to that, Professor Garber. Doesn't he have a good point?

GARBER: Well, when we say -- when he says it is unworkable, for 230 years that is how it has been. We've never actually deployed the constitution the way that Professor Tribe suggests. And moreover, I think it's actually -- it creates the right incentive. What we want to do is not provide an incentive to a corrupt public official to hang on, to stay in office, to fight, fight, fight, fight, fight. What we want to do is provide an incentive for a corrupt public official to resign. And so applying it this way would create a perverse incentive.

One final point. The framers of the constitution actually spent a long time thinking about and then drafting this constitutional provision about who actually is subject to impeachment. And they defined it as the president. You know, notably there were states at the time and the framers knew this that extended impeachment beyond an official's term in office. The framers decided not to include that kind of language which other states explicitly had in this constitution.

SMERCONISH: Understood. Professor Tribe -- Professor Tribe, you get 20 seconds and we're done. Go.

TRIBE: The reason this hasn't happened before is that we have never before had a president so lawless, so violent, so willing to upturn and overturn the results of a fair and free election. That is why this is unprecedented. And so that it will never happen again we need to disqualify him. That requires holding a trial.

GARBER: But you can't change the constitution --

SMERCONISH: Thank to both of you. I really appreciate this.

GARBER: Sure.

TRIBE: Thanks.

GARBER: Thanks, Michael.

SMERCONISH: Thank you, gentlemen. Appreciate it.

Let's check in on your tweets and Facebook comments. What do we have? From the world of Facebook, I think.

Even if he is convicted and can't run again he will still have influence over his followers and therefore affect re-election of other members. He will seek revenge. They are not going to get rid of him.

Nancy, truth in that, but I think that the greater power he would have would be the risk of him being the nominee in 2024 even if he is not successful in that campaign. I mean, just sort of as I've tried to do with my game theory analysis, think about what 2022 looks like if the prospect of Donald Trump running again in 2024 is alive and well. He would wield outsized influence in that scenario unlike if there were a conviction and disqualification. It's complicated.

I want to remind you, answers the survey question at Smerconish.com this week. Is the impeachment trial worth it even if it appears unlikely that 17 Republicans will vote to convict?

Still to come, this looks like a scene from an overseas military installation. It's actually our nation's Capitol as thousands of National Guard troops are there to protect against more violent protests. I'll ask CNN national security analyst Peter Bergen precisely where are the threats coming from.

(COMMERCIAL BREAK)

[09:48:04]

SMERCONISH: Federal law enforcement officials are warning that domestic extremists are more emboldened to carry out attacks on President-elect Joe Biden's upcoming inauguration and throughout 2021 after seeing the -- quote -- unquote -- "success" of last week's siege on the U.S. Capitol. It has prompted a massive show of force in Washington, D.C., jarring images of National Guard troops lining the streets, the Capitol building transforming all into a fortress.

And by inauguration day, 25,000 National Guard troops expected to be in Washington, that is more than three times the number of U.S. troops currently serving in Afghanistan, Iraq and Syria combined.

States are also increasing security at their capitol buildings ahead of what the FBI warned are armed protests being planned in all 50 states from today through at least January 20. Check out Pennsylvania State Capitol in Harrisburg, deemed more at risk since it is one of the states where the Trump campaign contested the election results.

Facebook says that it has seen online signals indicating the potential for more violence. One security official tells CNN the online chatter is off the charts right now. Acting Homeland Security Deputy Secretary Ken Cuccinelli acknowledged the chatter but said the threats are not specific.

(BEGIN VIDEO CLIP)

KEN CUCCINELLI, ACTING HOMELAND SECURITY DEPUTY DIRECTOR: There is a good deal of online chatter. It isn't just about Washington, by the way. There's also conversations about state capitols though very unspecific. No particular state capitol mentioned or identified, just this elevated online chatter that indicates a higher level of tension right now.

(END VIDEO CLIP)

SMERCONISH: So with nothing specific on the radar, what's the nature of this threat at the inauguration and beyond? Joining me now to discuss is CNN national security analyst Peter Bergen. He's the vice president of New America and the author of the book "United States of Jihad: Who Are America's Homegrown Terrorists, and How Do We Stop Them?"

You know, Peter, I know from reading that book you anticipated much of this. It occurs to me that it transcends Donald Trump.

[09:50:04]

True?

PETER BERGEN, CNN NATIONAL SECURITY ANALYST: Yes, I think so. I mean, look, any student of American history knows that the worse terrorist attack in the United States before 9/11 was carried out by Timothy McVeigh who was influenced by the

militia movement of Michigan, killed 168 people. Again, the Oklahoma City bombing I think really undercut that movement for a while but didn't go away. And now it has come back with a vengeance and, Michael, I think that you can almost characterize it as sort of a domestic insurgency. It's more than just, you know, a couple of isolated terrorists who, you know, are getting radicalized. This is a fairly large movement. Some of them are armed. We saw a number of military veterans take place in the -- who were at the protest and riot at Congress. And so this is -- yes, I think it's bigger than Trump. It has been around longer than Trump. Trump has certainly amplified it and kind of given it permission, particularly the commander in chief sort of inciting effectively this riot.

But it will not just fade away. I think it has been quite undercut, hopefully, by the terrible events at the Capitol. Hopefully that may reduce some of its appeal. But not according to what we're hearing from law enforcement, unfortunately.

SMERCONISH: So take me into the world of how these folks communicate, because we're all seeing in the footage this massive show of support of defense of the Capitol. We all know what happened a week ago. What I'm not seeing, and maybe because it's just not in the internet space that I travel, is where exactly are the threats and what do they consist of?

BERGEN: Well, any kind of group that's interested in revolutionary violence is going to communicate on Twitter and Facebook to get people into the folds, to kind of recruit people. And then when they get serious about planning some kind of actual attack they're going to move to encrypted applications, like Telegram, like Signal. You know, Telegram has just added 25 million new users in just the last three days and it has 500 million users around the world.

And I'm not saying that all these new users are somehow interested in violence in the United States. The point is is that you can -- I went on Telegram yesterday and I found 10 open sort of chat rooms for people who support Proud Boys including one from Philadelphia. And then you can move to these peer-to-peer encrypted parts of Telegram, which lots of people -- ISIS did when you get into the actual planning.

So I can't prove that it's happening because I can't get into these encrypted platforms, obviously, but I suspect that if people are really engaging in some serious planning of malfeasance, they're doing it through these encrypted applications which will -- unfortunately can't really access.

SMERCONISH: Are you more concerned, final question, of the nation's Capitol or the capitols of states?

BERGEN: I am more concerned, Michael, about the latter, because -- I mean, there's a tremendous show of force and you would have to be pretty idiotic to try to do something at the Capitol with the kind of situation we have now. The mall is closed. The bridges are going to be closed. D.C. has turned into an armed camp.

Now, the state capitols, that's a different matter. So it seems to me just based on what we're looking at that state capitols do have a serious issue and hopefully as many of them will be defended as possible. SMERCONISH: Peter, thank you as always. Appreciate your expertise.

BERGEN: Thank you.

SMERCONISH: Still to come, more of your best and worst tweets and Facebook comments and we'll give you the final result of the survey question. Go to smerconish.com right now. "Is the impeachment trial worth it even if it appears unlikely 17 Republicans will vote to convict?"

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[09:58:29]

SMERCONISH: Time now to see how you responded to this week's survey question at Smerconish.com. Is the impeachment trial worth it even if it appears unlikely that 17 Republicans will vote to convict?

Survey says -- whoa, 91 percent. I call that pretty decisive and at 38,000 -- I think we're now over 40,000, a pretty big sample size as well.

Catherine, what do we have from social media this week?

This -- if we don't have the Senate trial and convict, Trump was right, he got away with shooting someone on 5th Avenue. Remember, it's complicated. I gamed it out. Senator Klobuchar came on. I was curious to know from her does she employ some kind of a game theory strategy and she said essentially we're aware of the ramifications but no. If you believe the guy incited a riot, you've got to move forward.

What else came in from social this week? This is from -- Smerconish, Saturday morning law class.

Greg, I hope you mean that as a compliment and not as a snooze. I was so thrilled to have Professors Tribe and Garber here to talk about the jurisdiction issue because I think that -- and Tom Cotton kind of tipped the hand, maybe, of the administration but that's probably going to be a large part of what's to come.

Not so much a causation defense, not a defense on the First Amendment or the propriety, certainly not of what the president had to say. But a defense that says, hey, here we are conducting this trial and he's no longer even president of the United States, and that does place us in uncharted territory.

[10:00:05]

So, yes, it was a law class today and I hope that means it was a good thing. All right. Thank you so much for watching. Big week coming up and I'll see you next week.