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Smerconish

Broadcasting Legend Larry King Dies At Age 87; Trump's Gone, But Repercussions Remain; Teacher Suspended For Rally Attendance; How Will Trump's Second Impeachment Trial Play Out?; Inside Biden's Oval Office. Aired 9-10a ET

Aired January 23, 2021 - 09:00   ET

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

FRANK SESNO, DIRECTOR, GEORGE WASHINGTON UNIVERSITY SCHOOL OF MEDIA AND PUBLIC AFFAIRS: And he's in someone's house and he says why are you calling me? Just because I'm a big fan. Larry was not just a great questioner --

VICTOR BLACKWELL, CNN ANCHOR: Yes.

SESNO: -- not in the style of a Tim Russert or even me where you're trying to really push somebody, but in he was a conversationalist, he was a storyteller and that's what he did through his interviews. Even with politicians --

BLACKWELL: Yes.

SESNO: -- he tried to evoke the story.

BLACKWELL: Well, Frank Sesno, Brian Stelter, again, a huge loss not just for our industry, but for our world, our country as he was the intersection of so many elements of our daily lives. Thank you so much for contributing to the conversation. Our coverage continues now of the loss of Larry King with Michael Smerconish.

MICHAEL SMERCONISH, CNN ANCHOR: Trump's gone, but waves remain in his wake. I'm Michael Smerconish in Philadelphia. President Biden said in his inaugural address that to restore the soul of America requires unity, but that might have to wait while some of the residual issues surrounding his predecessor are sorted out and not all have easy answers.

First, there's the pending impeachment of former President Trump. Yesterday, we learned that the House will transmit the single article to the Senate on Monday and Trump's impeachment trial will begin February 9, giving the Senate time to confirm Biden's cabinet. There's also a question of whether those senators who supported Trump's challenge of the Electoral College will be reprimanded.

Seven senate Democrats have filed an ethics complaint against Senators Josh Hawley and Ted Cruz and want an investigation into the role their conduct may have played in the January 6 events. The letter raised the possibility of expulsion or censure. Hawley recently lost a book deal with Simon & Schuster. Conservative imprint Regnery then stepped in, but here's an indication of how complex the Trump aftermath can be. Regnery, their distributor is Simon & Schuster. There's also residual blowback in the House. According to a review by "The Washington Post," the 147 Republican House members who oppose certification of the presidential vote face the loss of support of many of their largest corporate donors. "The Washington Post" contacted 30 companies that gave the most money to election-objecting lawmakers campaigns through political action committees.

Two-thirds or 20 of the firms said they've pledged to suspend some or all payments to their PACs. One of those Republican members, New York's Elise Stefanik, has been removed from an advisory committee at The Institute of Politics at the Harvard Kennedy School for what the dean said was her, quote, "public assertions about voter fraud that have no basis in evidence."

Another ripple effect -- Trump may lose his membership in the Screen Actors Guild or SAG. According to the "Associated Press," Trump's credits include "The Apprentice," "Saturday Night Live," and many cameos in films and TV series including "Home Alone 2: Lost in New York," "The Fresh Prince of Bel-Air" and "Sex and the City," but the SAG board said that Trump's role in the January 6 riot may violate its terms for membership and he could be expelled.

This comes as the former president's attorney, Rudy Giuliani, is himself being investigated by the New York Bar Association. Meanwhile, "Washington Post" columnist Max Boot adds to the list another actor who he singles out for punishment. Boot calls on large cable companies such as Comcast and Charter Spectrum to kick "Fox News" off their platforms.

And then there's the retail world. Shopify has removed e-commerce sites affiliated with Trump including his official campaign store and some retailers are singling out the My Pillow guy, Mike Lindell, who stuck with President Trump to the bitter end. Lindell was photographed leaving the White House on Trump's last Friday in office with notes that seemed to refer to martial law. Several retailers now dropping My Pillow including JCPenney, Kohl's, Macy's and Bed Bath & Beyond.

Now, some ramifications from January 6 are not subject to debate. For example, the guy captured on video hitting police with a hockey stick? He faces five federal charges, but what about those who attended the Trump rally and didn't break the law? Many employers across the country dealing with this issue. Ohio's "Journal News" reports that the Reverend Mark Hodges has been suspended from all priestly functions for three months for attending the rally. The priest maintains he did not go inside the Capitol.

"KSHB" reports that a member of the Kansas City Missouri Police Department attended the rally, but didn't go inside the Capitol. The mayor said the officer did nothing unethical in exercising his constitutional rights, but stressed that any members found to have broken the law shouldn't remain on the force. "WHYY" reports that seven officers from the Southeastern Pennsylvania Transportation Authority attended the pro-Trump rally.

[09:05:05] A spokesman for the agency said there's no indication they were involved in the Capitol breach, but one of them will be reassigned for violating the transit agency's social media policies. And then there's Jason Moorehead. The Allentown, Pennsylvania school district has temporarily suspended the middle school social studies teacher with pay and benefits while they investigate his actions in the Electoral College protest.

His involvement came to light in this screenshot that he posted with the words, "Doing my civic duty," while he was carrying the revolutionary war flag, "Join or die." He also shared a post on his Facebook page where someone else said, "Don't worry, everyone. The Capitol is insured," which some interpret it as a mocking of Black Lives Matter and/or Antifa. Moorehead then added, quote, "This."

In a statement, the Allentown school district superintendent wrote, quote, "The school district was made aware of a staff member who was involved in the Electoral College protest that took place at the United States Capitol building on January 6, 2021. We understand that many members of our community are upset by the image.

At the same time, the district has an obligation to respect the first amendment rights of our staff and students. Because of the emotion and controversy stirred by the events of January 6, 2021, the teacher has been temporarily relieved of his teaching duties until the school district can complete a formal investigation of his involvement."

Moorehead is here and will join me in just a moment with his lawyer, but this trend raises an important question with long-ranging implications -- should people face consequences for appearing at President Trump's January 6 rally even if they didn't storm the Capitol? That's today's survey question. Go to Smerconish.com right now and cast your vote.

Joining me now is teacher Jason Moorehead along with his lawyer, Francis Malofiy. Thanks so much, Jason, for being here. I read aloud a part of that release from the school district which makes reference to the Electoral College protest that took place at the United States Capitol Building. How close did you get to the Capitol?

JASON MOOREHEAD, SUSPENDED PENNSYLVANIA TEACHER: Hi, Michael. Thank you for having me here. I was no closer than a mile and a quarter to the Capitol Building. I was in the vicinity of the Washington Monument the entire time I was down in Washington D.C..

SMERCONISH: And what were you doing there?

MOOREHEAD: Watching the event, listening to the speakers, trying to hear from the President and hear what he had to say.

SMERCONISH: Did you break any laws while you were there?

MOOREHEAD: No. Period. I was there just observing firsthand to be a witness to a historic day and never was anywhere within a mile of the -- of the -- of the riot that happened which I didn't know about until much later. We walked around the Washington Monument, tried to get close to the White House, ate a hot dog and went back to the bus.

SMERCONISH: So I showed the social media posting that you put up and we can do it again, "Doing my civic duty." There you are with a Make America Great Again hat. You're carrying the flag. There it is on screen and then additionally, someone else posts in social media, "Don't worry, everyone. The Capitol is insured," to which you add, "This." What is it that you were seeking to convey?

MOOREHEAD: I want to be clear. I was not mocking BLM or Antifa with that post. I was trying to highlight what I believe is the double standard that often exists in the media when they're looking at two different events from two different political groups.

SMERCONISH: This has caused a lot of social media reaction, much of it negative, directed toward you. I'll give one example to the audience. Someone posts, quote, "This was not a protest. It was, in fact, domestic terrorism. He should have never been there to begin with. Being a part of a heavily minority based teaching program sporting a MAGA hat, smiling like it was the most joyous day of his life is not OK in the middle of a pandemic at that." There's more to it, but what's your reaction to those critics?

MOOREHEAD: For me, simply being at a place with thousands of people, having the opportunity to listen to the President and form my own opinion is doing my civic duty. I definitely have some conservative values and beliefs, but they have never taken part in what I do in the classroom. I've always encouraged my kids to be critical thinkers and to form their own opinion, one that they can be proud to have.

FRANCIS MALOFIY, JASON MOOREHEAD'S ATTORNEY: You know, if I might follow, Michael.

SMERCONISH: Go ahead, Francis.

MALOFIY: The thing ...

SMERCONISH: Yes. Please.

MALOFIY: The thing here is that the school district, without asking this teacher's position, a teacher who had 17 years of impeccable performance who cares about his students ...

[09:10:03]

... without asking his position as to where he was and then blasting him with a press statement that said he was at the Capitol Building protest is absolutely false. It implies that he was violently protesting and was not part of a peaceful event which he was part of and to never correct that statement after they learned that he was nowhere near the Capitol building protests, but over a mile away is defamatory and has destroyed his life.

You know, we talk about diversity of people, but we've forgotten diversity of speech, thought and opinion. In public schools, there needs to be critical thinking that can only happen if the two sides are represented and you can't endorse a political movement to the exclusion of another, otherwise it violates the First Amendment and we're here going to fight for this teacher who, for 17 years, gave his life to helping others. SMERCONISH: Jason, you've not been fired, as I understand it. What is your status?

MOOREHEAD: I am suspended with pay while they continue their investigation. It's been over two and a half weeks. They should be aware I was never near that building, never part of anything illegal or violent and I'm currently waiting for them to do the right thing, to reinstate me and ideally offer a full apology absolving me of any wrongdoing because my reputation and character has been destroyed.

SMERCONISH: Francis, can he be fired ...

MALOFIY: And we ...

SMERCONISH: ... for having been there?

MALOFIY: Absolutely not. The First Amendment, which is the greatest amendment that this country has, the exclusion of all other countries, protects freedom of speech, protects freedom of assembly, protects the ability to disagree with your government. You know, if you can -- if you can appreciate the BLM protests that occurred throughout the summer, so, too, must you appreciate a conservative protest that was peaceful.

We're not condoning, you know, violent protests here. What we're talking about is this is a person who witnessed events at the Washington Monument nowhere near the Capitol Building. There's no way that they have any evidence nor is there no way that the school district can discipline or fire him for his attendance of this -- of this event and they need to do the right thing, put him back in the position he was and offer a full apology and we still have not heard from the school district.

SMERCONISH: Jason, quick final question. What would you say to people who are watching this and say, yes, OK, but nevertheless, this was an insurrection and you attended it?

MOOREHEAD: I was not near any part of the violence that occurred at that building. I went down there to learn and observe, gain knowledge. I've been bullied and I don't want my family, my co-workers, my students to feel that they shouldn't defend their First Amendment protections.

SMERCONISH: Gentlemen, thank you both for being here. I appreciate it. We'll follow this case.

MALOFIY: Thank you, Michael.

MOOREHEAD: Thank you, Michael. I appreciate it too.

SMERCONISH: What are your thoughts? Tweet me @Smerconish or go to my Facebook page. I'll read some responses throughout the course of the program. From Facebook, "Good for the school district. He is still being paid, so what's the problem, as they ensure he is not a radical right-wing extremist given that he advertises himself as such, 'it's insured.'" Well, you say good for the school district and what's the problem, but he's being besmirched, right? He's being treated as if he's the same as those who breached the Capitol and were involved in violent acts and his explanation, I know no different, is I was there and I had a sign and I was protesting as is my lawful right to do.

Look, this is going to be a really interesting survey result today. I want to know what you think. Go to my website at Smerconish.com. The easy question is what do you do, you know, with the guy with the hockey stick? You throw the book at him, but what about people who were there not involved in any violence, acting lawfully? Should people face consequences for appearing at President Trump's rally even if they didn't storm the Capitol? That's today's question.

Up ahead, Donald Trump's second impeachment in the Senate scheduled to begin the week of February 8. What happens next? I'll talk to one of the Democrat's lawyers from impeachment one and one of the President's lawyers who brought the fraud claims to SCOTUS and who spoke at that January 6 rally.

Plus, a number of lower risk Americans have already gotten their COVID vaccines while many who are higher risk and eligible can't get appointments. Should people just get inoculated when it's offered or consider giving up their slot to somebody else?

And by now you probably know the sad news this morning for the entire CNN family, frankly for all Americans. Legendary talk show host Larry King has passed away at the age of 87.

(COMMERCIAL BREAK)

[09:15:00]

(COMMERCIAL BREAK)

SMERCONISH: The House transmits its article of impeachment to the Senate on Monday. Senate Majority Leader Chuck Schumer announced Friday the trial will start February 9. So how's this going to go? Joining me now to discuss, lawyers from both sides of the aisle, Daniel Goldman and John Eastman. Daniel Goldman, you'll recall, was lead counsel for the Democrat House inquiry during President Trump's first impeachment. He also was assistant U.S. attorney for the Southern District of New York.

John Eastman appeared at President Trump's rally on January 6 before the riot and represented the president in a failed lawsuit requesting the Supreme Court block four states from certifying Biden's victory. Mr. Eastman, let me begin with you. Will you be representing former President Trump at his impeachment trial?

JOHN EASTMAN, REPRESENTED PRESIDENT TRUMP IN LAWSUIT: Well, no. Under the D.C. code of ethics for lawyers, when a lawyer's a witness, they're not supposed to be an advocate. So, you know, I've, you know, stayed out of that mix, but I do think the President is going to have very capable representation and this should be a relatively easy impeachment trial. I don't think the Senate has jurisdiction anymore now that he's no longer in office.

SMERCONISH: In other words, your view is, along with others, that because the Constitution speaks of removal, it applies to incumbents and not former office holders?

[09:20:06]

EASTMAN: Well, that's right and you get into the issue of, when it's the President of the United States, the chief justice shall preside. This is the former President of the United States which I think really highlights that what they're doing is trying to impeach a private citizen. The chief justice should not preside because it's no longer the President of the United States, but of course that goes right to the Article Two language ...

SMERCONISH: Under -- yes.

EASTMAN: ... that talk about impeachment power, you know, is for removal of officers.

SMERCONISH: Understood.

EASTMAN: He's no longer an officer of the United States.

SMERCONISH: I get it. Yes. I get it. I had Laurence Tribe here a week ago. He feels differently. There's a lot of academic legal firepower that view it differently, but I have a different focus with you. I'm so eager to ask you this question. You spoke at the rally on January the 6th. When you spoke at the rally, did you or any of the other speakers know that attendees were going to breach the Capitol?

EASTMAN: Well, let me -- let me challenge your assumption there. The half million people that were up on the Ellipse as attendees to the rally there were not part of the incursion that was going on in the Capitol and that had already begun before the speeches at the Ellipse in front of the White House had even concluded. We've now learned, as "The Washington Post" ...

SMERCONISH: But you and I both -- yes.

EASTMAN: We've now learned, as "The Washington ...

SMERCONISH: You and I both know, come on, it's walking -- it's walking distance. You can -- you can walk -- you can walk from the Ellipse to the Capitol in about 15 minutes' time. I don't know how you could say, well, the people who were there didn't go in the other direction.

EASTMAN: Show me -- show me any evidence you have of people that were at the rally being part of the incursion into the Capitol? What "The Washington Post" reported ...

SMERCONISH: But how the hell would we ever know?

EASTMAN: Well, that's exactly right. You're making an assumption that you don't know, all right? "The Washington Post" reported the other day that ... SMERCONISH: No, no. No, no. I'm asking a -- no. I'm asking a question. No. Mr. Eastman, respectfully, and look, I'm happy to have dialogue with you. I'm really looking forward to this brief conversation. My question stands. Did you know that anyone -- how about this -- anyone widely defined was going to breach the Capitol that day?

EASTMAN: Of course not. Of course not. What we've learned from "The Washington Post" just two days ago was that there was a paramilitary group as well as Antifa groups that were organizing that three to four days ahead of time. We had no knowledge of that.

SMERCONISH: Hundreds of people have been arrested. Is there a single individual that you can point to from Antifa who's been arrested?

EASTMAN: Yes. The Antifa and BLM guy who was arrested and we've got pictures of Antifa guys at rallies all last summer that were there. So absolutely, you know, and I think ...

SMERCONISH: We're not talking about last summer. OK. Let me -- let me ask you this question. Rudy ...

EASTMAN: No, no. I'm talking -- hang on. You asked me -- you asked me whether I had any evidence of Antifa guys and I said we've got pictures of people at Antifa rallies last summer that were in part of the incursion in the Capitol...

SMERCONISH: No. My question was who has been -- my question was who has been ...

EASTMAN: And he was arrested.

SMERCONISH: Look, I don't want this to be contentious. I'd rather learn from you. I'd rather learn from you. Let me ask this.

EASTMAN: I know, but ...

SMERCONISH: Rudy Giuliani spoke -- Rudy Giuliani spoke of trial by combat, the President said, "We will stop the steal. We're going to walk down Pennsylvania Avenue. We're going to the Capitol. You'll never take back our country with weakness," and then you said this. Roll the tape.

(BEGIN VIDEO CLIP)

EASTMAN: We no longer live in a self-governing republic if we can't get the answer to this question. This is bigger than President Trump. It is the very essence of our Republican form of government and it has to be done and anybody that is not willing to stand up to do it does not deserve to be in the office. It is that simple.

(END VIDEO CLIP)

SMERCONISH: What responsibility are you prepared to take for those words as being incitement to that crowd?

EASTMAN: They don't even get close to incitement to that crowd. The standards set out by the Supreme Court in Brandenburg versus Iowa is not remotely close to what I said and let's -- and let's put that statement in context.

We're talking about asking the vice president to delay the proceedings enough to exceed the request from hundreds of state legislatures who had notified him that their electoral votes had been certified in violation of state law and to give those legislatures a few days, now that they were back in session, to review the illegality that occurred and to determine whether it had an effect on the election.

The issue here is whether state election officials could violate state law with impunity and have no consequences and have Electoral votes illegally ...

SMERCONISH: No. That's -- no. That's not it. The role -- the role of the Congress that day ...

EASTMAN: That is the -- that was the issue that I was talking about.

SMERCONISH: Mr. Eastman, you're too smart. The role of the Congress that day was simply to tabulate the votes of the Electoral College. The time had passed for challenge. I have another question for you. You said -- you just brought up Vice President Pence ...

EASTMAN: Hang on. That's not -- hang on. That's not -- that's not true. That's not true and I'll give you a hypothetical to make clear it's not true. Let's suppose one of the Democrat governors in a state that Trump clearly won, say North Carolina or Kansas, had certified the Biden electors instead and sent them to Congress.

[09:25:03]

Is Congress just supposed to be a potted plant and accept those fraudulently-certified electors or does somebody ...

SMERCONISH: That didn't happen.

EASTMAN: ... have the ability to do something about it?

SMERCONISH: But that didn't happen. The ability ...

EASTMAN: Well, that was the issue. That -- no, hang on (ph) ...

SMERCONISH: No, sir. The ability to do it had already passed. I need to ask you this question. I need to ask you a very important question. You just referenced Vice President Pence. You said at the rally, quote, "This is bigger than President Trump," you said, "Anybody that is not willing to stand up to do it does not deserve to be in the office. It is that simple." We can agree you were talking about Mike Pence, right?

EASTMAN: Yes, I was talking about Mike Pence. The question is what was I asking ...

SMERCONISH: OK. So here's what followed.

EASTMAN: And look at the -- no. Look at the question.

SMERCONISH: Here's what followed after ...

EASTMAN: Hang on. Hang on a second. Hang on a second. Don't (ph) take that out of context.

SMERCONISH: After you said that about Mike Pence. I'm going to roll video and then you can respond. Roll the video of what followed.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: Hang Mike Pence. Hang Mike Pence. Hang Mike Pence. Hang Mike Pence.

(END VIDEO CLIP)

SMERCONISH: You don't see any causal connection between your words and the "Hang Mike Pence" chants that followed?

EASTMAN: That was two miles away. You know, to make that causal connection, you've got to show that any of those people had anything to do with hearing my statement two miles away in front of the Ellipse, but I'm not going to let you get away with taking that out of context. What was it I said immediately before that statement you've now read and then played?

It was that Pence would have been asked by legislatures merely to delay the proceedings enough so that those legislatures could determine whether their illegally certified electors should nevertheless stand. That's what we were talking about and so don't take it out of context to make it appear as if I was saying something that I was not.

SMERCONISH: Do you think that the point you've just made was something grasped by the individuals who stormed the Capitol?

EASTMAN: The people that stormed the Capitol were not in the earshot of what I said. Yes, it was grasped by the half million people on the mall up at the White House. They all understood that I -- that I had simply said what we're demanding of Vice President Pence is that he merely delay the proceedings enough, at the request of these legislatures, to allow them time to review whether their certificates of electors were illegally cast.

That's all and to take it out of context and to tie it to something happening two miles away that had no connection with it, I think, is really dishonest.

SMERCONISH: I don't think I've taken it out of context. I'm trying to present the audience with the sort of argument that I think is going to be a part of the President's impeachment trial. I'll give you the final word, but try and keep it to 30 seconds.

EASTMAN: Well, look, look, I mean, what happened at the Capitol was a travesty and everybody that was involved in breaching that Capitol should be prosecuted to the full extent of the law, but as your prior guest, Jason Moorehead, discovered it ought not to apply to people who were peaceably expressing their views that something was wonky and wrong with this election and we ought to get to the bottom of it.

When state election officials violate election laws in order to put the thumb on the scale for one candidate over another, we no longer have fair elections and that seems to be a very big issue that the American people ought to be deadly concerned with, desperately concerned ...

SMERCONISH: Yes. And I ...

EASTMAN: ... because otherwise, elections are what runs our government (ph) ...

SMERCONISH: I agree -- I agree with most -- I agree with most of what you just said, but as my parents raised me, time and a place, time and a place. That was not the role of the Congress on January the 6th. I'm out of time. Hopefully we'll continue this later. Thank you.

EASTMAN: Thank you.

SMERCONISH: Now for the Democratic side. Daniel Goldman, lead counsel for the majority House inquiry during President Trump's first impeachment. I had a whole slew of questions to ask you specifically, but first I want to ask you to react to what you just heard from Mr. Eastman.

DANIEL GOLDMAN, FORMER HOUSE IMPEACHMENT INQUIRY MAJORITY COUNSEL: Well, the whole premise of what he's claiming is completely fallacious. There is a process to challenge the election and that's through the courts and Mr. Eastman and others tried to do that and the courts uniformly dismissed them right out of pocket. I mean, they were -- they were meritless.

It is not the role of the vice president or Congress to raise legal issues with a state-run election. That's done in the states. It was certified by the states. It was the -- as you point out, it was the wrong place and the wrong time and if I'm Mr. Eastman, I'd be very careful about what I say publicly because his statements to you and anyone else publicly can be used against him.

SMERCONISH: I think the critical question, and I put it to my guest, is what did those speakers know of the intention of members of that crowd? Did they know that an assault on the Capitol was planned?

GOLDMAN: You hit the nail on the head, Michael. That is the key question from a criminal standpoint in terms of prosecuting incitement.

[09:30:04]

GOLDMAN: You would want to be able to show that there is some knowledge ahead of time that there was this plan to storm the Capitol. And we know that there was a plan.

So the question then becomes, what did Mr. Eastman, Giuliani, Don Jr., the president, what do they know about those plans when they start citing trial by combat? And the president says, we have to go to the Capitol. And the ones that we support are going to have to fight hard. And -- you know, real sort of rabble-rousing so to speak.

There are a lot of ways that a criminal prosecutor would find out that evidence. It's going to take longer than two weeks in advance of the impeachment trial. So the question for impeachment is slightly different. It's not quite as acute and quite as stringent as in a criminal prosecution.

SMERCONISH: Are President Trump's -- former President Trump's due process rights being protected? The whole nation watched you and your adversary, Mr. Castor, in Trump impeachment one. And there was a presentation of evidence in the House. There was nothing like that in the House in this go-round.

And also it occurs to me, you know, the senators are the victims of what transpired January 6th. How impartial a jury can the president draw when we're talking about an assault on the home of the Congress?

GOLDMAN: That's true. I mean, that was an issue that we had. There were some senators who were involved in the Ukraine issues that were at the core of the last impeachment.

Look, in an ordinary prosecution the prosecutor goes to the grand jury, gets an indictment and then they go to trial and that is when the defendant can defend himself. This is very similar to what we have here. The House effectively by impeaching him indicted him.

Now it goes to trial in the Senate and we have a two-week delay for the president to mount a defense, to file any pre-trial briefs which I assume will include what I think is an incorrect legal reading of the constitution that he cannot be tried after he's removed, but he'll have an opportunity to do that. He'll have an opportunity to present witnesses or ask for witnesses if he wants. His due process is -- his due process rights will be protected in the Senate trial. There is very little required in the House in terms of protecting his due process rights.

SMERCONISH: Got it.

GOLDMAN: And I would just add Steve Castor and the Republicans of the House were not -- are not actually the president's defense lawyers. They acted that way last time but they are not. And the president and his lawyers had an opportunity to participate in the Judiciary Committee last time and they bypassed that opportunity. So --

SMERCONISH: Daniel --

GOLDMAN: -- to say that --

SMERCONISH: Daniel Goldman --

GOLDMAN: -- he would be given an opportunity does not matter right now. SMERCONISH: Understood. I'm losing -- I have lost your video feed, but we heard everything you said at the end. Thank you so much -- thank you so much for being here.

GOLDMAN: Thank you.

SMERCONISH: Let us see what you're saying via my social media, the Smerconish Twitter and Facebook pages. Catherine, what do we have? Twitter.

How do you impeach if President Trump's rally video is shown where he asked for peaceful and patriotic march?

Ronald, I took due note of that line. Repeated it both here on CNN and in all of my discussions on my SiriusXM radio program. It's true. There was a reference to that. But was it a CYA line when paired with, you know, it's only -- I don't have the exact words in front of me, but when President Trump is speaking only of strength -- only through our strength. We've got to be strong. We've got to stop the steal. And we're going to walk down the Capitol -- walk down to the Capitol and do it. You've got to look it all in totality and in context.

I want to remind you, go to my Web site at Smerconish.com and answer this week's survey question. "Should people face consequences for appearing at President Trump's January 6 rally, even if they didn't storm the Capitol?"

Up ahead, if you're offered a COVID-19 vaccine, should you jump at the chance or give up your slot to somebody determined to be more in need? And the brief tribute to a legendary broadcaster, CNN eminence Larry King sadly has passed away at the age of 87.

(COMMERCIAL BREAK)

[09:38:43]

SMERCONISH: If you're offered a COVID-19 vaccine are you obliged to take it or would it better for society to give up your slot for now to someone determined to be more in dire need? With America desperate to get back to normalcy and President Biden promising 100 million shots in the first 100 days you'd think it a no brainer to grab one if you can.

But due to the bumpy distribution so far and inequitable access in various parts of the country deciding to get inoculated is presenting many Americans with a moral quandary. Nobody better to discuss this with than Art Caplan, the founding director of the Division of Medical Ethics at New York University's Grossman School of Medicine. What do you say, Dr. Caplan? If offered, should you take it?

ART CAPLAN, FOUNDING HEAD, DIVISION OF MEDICAL ETHICS AT NYU SCHOOL OF MEDICINE: Well, Michael, it's noble to say, I don't want to take it. It's admirable to try and get it to somebody else. But I think you have to take it and the reason is we're not set up to redeploy a vaccine that somebody turns down. It's hard to find someone who is in need more than you. Very difficult to move the vaccine. It's hard to ship it and transfer it.

I think you're stuck. You can take it with some, you know, regret but I think you have to take it.

SMERCONISH: So let's distinguish your advice to take it if it's offered from gaming the system.

[09:40:03]

CAPLAN: Yes. So there is a difference between saying I showed up because they called me in and said that there is a vaccine for you. And you look around and you think, hey, what am I doing here? I'm not old and I'm not at risk.

I think that you have to take what you can get. Versus I'm going to bribe somebody by giving a big donation to say a school or university which I've heard about to get in front of the line. I'm going to fly to Florida or Nevada where they seem to be chaotic and just stand there even though I'm not at risk. Or I'm going to pay a lot of money to private practice doctors who somehow get a hold -- that is cutting in line. That is unethical.

SMERCONISH: I'm hearing anecdotally through my radio work from people who I guess it was inevitable that we would get to a stage where people are starting now to hear stories about neighbors, their social circle, their friends and families, why did he get it and why have I still not gotten it? Or why hasn't my grandmother gotten it because the guy that I work with has got it?

CAPLAN: Well, the rollout has been you said rocky. I'm going to say a total mess, unbelievably bad. The Trump administration had promised, you remember, Michael, a surplus of vaccine. There wasn't any. States begin to plan to get that. Expanded the eligibility criteria when there's no vaccine in a lot of these states. In New York, for example, they're out today. Why would you say more people can come if you don't have any vaccine?

And then vaccine was distributed if you will to places where there weren't people that could take the vaccine. Plus, we had another problem, Michael. Refusal rates are high. Some places 30 -- 40 percent. We do have to pay attention to that.

I would not refuse the vaccine if offered. It's safe. It's effective. Much better than getting COVID. But if you have those high refusal rates you have got to redeploy the supply right away. The stuff is in a fridge. It's opened up. It's ready to go. You have to keep going down your list.

So we didn't plan properly. We didn't get the vaccine out there and then we didn't figure out what to do to redeploy it if somebody refused it or if a refrigerator broke or you opened up a package of 500 and people missed their appointments.

SMERCONISH: Quick final question. How far away are we from employers mandating that employees be vaccinated, that venues say admission only for people who've had it, airlines saying if you want to fly with us we're going to need proof?

CAPLAN: You know, we're not far, Michael. It's really contingent on supply.

People keep saying to me, I'm not going to let the government mandate a vaccine. Many of them who didn't even want to wear a mask but that's not how it's going to work. Airlines, cruise ships, hotels overseas, trains, they're going to say, you're not getting in here without a vaccine.

We're going to see efforts made, I think, to vaccinate athletes so they can keep playing. Maybe even at the Olympics, mandatory. Can't come into the stadium without a vaccine.

We're going to see mandates coming, but they're going to come out of the private sector I think first and then expand. But, yes, as soon as we have enough vaccine I think many businesses are going to say, if you want to come to work you got to show proof of vaccination. We'll see those vaccine mandates.

SMERCONISH: Dr. Caplan, thank you as always. We appreciate your expertise.

CAPLAN: Michael, thanks for having me.

SMERCONISH: Checking in again now in the Twitterverse. What do we have?

Biden's policy of 100 shots in 100 days is a great start. The new COVID variant is spreading faster than Bernie memes on social media.

Yes, I saw the mittens. Kind of funny stuff. I should also point out that I think we're already at the pace of a hundred million in a hundred days. The issue now is

we got to do better than that.

I want to remind you to answer this week's survey question at my Web site at Smerconish.com. "Should people face consequences for appearing at President Trump's

January 6 rally, even if they didn't storm the Capitol?" Meaning they didn't break the law. Should they be punished on the job? Should they be excoriated et cetera, et cetera, et cetera? We had a really interesting case at the top of the show. The schoolteacher who was there and says, hey, I was a mile away from the Capitol.

Still to come, each time we get a new president and Oval Office makeover ensues. But these decor choices aren't simply about personal taste. They reveal key insights about the person who sits at the resolute desk. Plus a brief tribute to the legendary broadcaster and CNN icon Larry King who sadly passed away at the age of 87.

(COMMERCIAL BREAK)

[09:48:42]

SMERCONISH: They say you can learn a lot about a person by seeing what's on their book shelf. And I'd argue that you can learn a lot about a president by seeing what's in their Oval Office. So what can we learn about President Joe Biden?

Joining me now to discuss is Annie Linskey from "The Washington Post." She was given an exclusive 20-minute tour of the Oval Office, Wednesday, after the inauguration but before President Biden even set foot in his new space. How cool is that?

Annie, I am so envious. What an extraordinary opportunity you had. What was most poignant as you were looking around?

ANNIE LINSKEY, NATIONAL POLITICAL REPORTER, WASHINGTON POST: It was such a special moment to be there. I think honestly the biggest thing that I noticed were the vacuum marks on the rug. It was so brand new. The office had just been prepared for the president. And the president's aides told me don't step on the rug because we don't have time to vacuum it again. But in terms of the art certainly the portrait, the large portrait of Franklin Delano Roosevelt stood out the most.

SMERCONISH: So, it's not as if somebody made a run to restoration hardware. Where do the furnishings come from? How does this work?

LINSKEY: Well, the -- you know, of course the Oval Office is a -- it's an office, a workspace.

[09:50:05]

It's an icon but it's also a museum. And these come -- all of the art and the furnishings come from the White House collection and there's just a massive amount of art and furniture in storage and the president was able to look through a catalog and pick out what he wanted to have moved into his new office.

SMERCONISH: I know that President Obama famously had the emancipation proclamation, among other things, and I think we have a picture of this. A moon rock was selected by President Biden. Speak to that.

LINSKEY: Yes, President Biden in particular he talks a lot about -- on a sum about America's achievements. And the concept of coming together as a country, we were able to step on the moon. He referenced it in a key piece of legislation that he wrote after -- pushed through Congress after being vice president. He called it the moonshot and that was his effort and his way of honoring his son who died of brain cancer.

This moonshot legislation was intended to provide more funding for the National Institutes of Health to help cure cancer. So when he thinks of a large accomplishment he thinks back to Americans stepping foot on the moon and I think -- and that's why he wanted that rock in his office, to remind him of what the country can really do when it pulls together.

SMERCONISH: On the credenza behind President Biden, photographs, who is depicted? LINSKEY: There's, of course, photographs of his family, his sons, his daughter, his wife. But it was really special to also see that there's a photograph of Biden meeting with the Pope. You know, Biden, of course, only the second Catholic president to occupy that office, and so it's quite interesting that that picture is there. Of course there's also the bust of Cesar Chavez, which is right behind him as he speaks in every camera shot. Cesar Chavez --

(CROSSTALK)

SMERCONISH: And I guess -- I guess -- I guess I'm also looking at a photograph we just showed of Beau Biden, a very, very young Beau Biden with his dad that kind of chokes you up to see it.

Hey, good for you. What a cool, cool experience. And I loved what you wrote about it. So thank you for being here.

LINSKEY: Thanks so much. I appreciate it.

SMERCONISH: Still to come, we've lost Larry King, CNN legend. He passed away at the age of 87 after 63 years in the -- you know, Philadelphia, hello. And of course we'll have some of your best and worst tweets and Facebook comments.

(COMMERCIAL BREAK)

[09:57:36]

(BEGIN VIDEO CLIP)

LARRY KING, CNN HOST: And in Philadelphia is Michael Smerconish, talk radio host, columnist for the "Philadelphia Daily News" and the "Philadelphia Inquirer." He is a Republican.

(END VIDEO CLIP)

SMERCONISH: That was such an honor for me. Sad news this morning as CNN confirms that legendry talk show host Larry King has passed. His son Chance confirmed his death.

There was only one Larry King. He was a broadcaster for 63 of those years across radio, TV and digital media, and of course famously hosted "LARRY KING LIVE" right here on CNN for more than 25 years. That was the place that you wanted to be, where books got sold, where a-list actors and actresses came to promote a movie, where politicians came to announce their candidacy. And it's where America would go to find out what happened on the burning issue of the day. No more true than during the O.J. Simpson trial that captivated the nation for a year.

Larry was so skilled in the art of conversation. It was all about making the phones ring and trying to hold people's attention, being able to elicit interesting answers from guests. He had a unique approach. For instance, unlike me, he didn't tend to read the books of the authors that he had on because he said he wanted to put himself in the same position of his audience. I was honored to be a guest of his to discuss the presidential race back in 2008 on a panel. It's kind of funny to look at the tape now, because there I am looking a lot younger, along with Lanny Davis and Kellyanne Conway.

There will never be another one like him which is such a shame. Those suspenders, that unique voice, Philadelphia, hello. We'll miss Larry King for sure and his civility.

Time to see how you responded to the survey question at Smerconish.com. "Should people face consequences for appearing at President Trump's January 6 rally, even if they didn't storm the Capitol?"

Here are the results. Let's see. Seventy percent say, no. They should not face -- oh, only 41,000 and change votes. By the way, that's the right answer. That schoolteacher that I interviewed, if in fact he was a mile away from the Capitol and not caught up in any of the vandalism and hooliganism, I think that's the right outcome.

[10:00:01]

Here is some of what you thought during the course of the program. What do we have?

Smerconish, if there's a significant yes vote to your question today it really speaks to how intolerant we've become.

Well, Jim Tyrone, there wasn't at least as far as I'm concerned and I think that's good news. Thanks for watching.