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Smerconish

U.S. In Proxy War With Russia; Interview With Former U.S. Ambassador To NATO Kurt Volker; Unintended Consequences Of Striking Down Roe v. Wade; Interview With Stanford University Professor Of Law John Donohue; Dave Chappelle's Attacker, No Charges, No Justice?; Will California Recall Its Most Progressive Prosecutors?; Is There No Such Thing As Bad Publicity? Aired 9-10a ET

Aired May 07, 2022 - 09:00   ET

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

(COMMERCIAL BREAK)

[09:00:00]

MICHAEL SMERCONISH, CNN ANCHOR: Is America at war? I'm Michael Smerconish in Philadelphia.

What is the line that would officially denote that the U.S. is at war with Russia? Consider that this week, "The New York Times" reported the U.S. provided intelligence about Russian units that allowed Ukrainians to target and kill many of the approximately 12 Russian generals Ukraine says have died in action. Intel was also provided that helped Kyiv attack and sink the flagship of Russia's black sea fleet, the Moskva. Well, it's unclear how many Russian sailors died in the attack, the U.S. believes that there were significant casualties.

At the onset of Vladimir Putin's invasion of Ukraine, more than two months ago, President Biden was insistent that he didn't want to make this a contest between the U.S. and Russia.

(BEGIN VIDEO CLIP)

JOE BIDEN, PRESIDENT OF THE UNITED STATES: Direct confrontation between NATO and Russia is World War III. Something we must strive to prevent.

(END VIDEO CLIP)

SMERCONISH: Fearing a potential nuclear conflict, his goal, it seemed, was to stand behind the Ukrainian people without military intervention and put pressure on Putin with sanctions, hoping that he would back off.

When Ukraine begged for more military support, the U.S., at first, appeared willing to support a transfer of MiG fighter jets from Poland. That deal was rejected by the Pentagon over fears it could lead to open conflict between NATO and Russia. But the discretion exercised in that decision has evolved into what increasingly looks like a proxy battle.

Consider this, the Biden administration has poured billions of dollars in missiles, anti-tank weapons and ammunition into Ukraine, that's in addition to the valuable intelligence U.S. officials have given Ukraine and a $33 billion aid package the president wants Congress to take up. Administration officials are adamant, there are clear limits on the intelligence the U.S. shares with Ukraine, that includes a ban on sharing intel that pinpoints senior Russian leaders by name to avoid crossing a line with Moscow. When asked by CNN's Brianna Keilar on Friday where that line is, this is what Pentagon Press Secretary John Kirby had to say.

(BEGIN VIDEO CLIP)

JOHN KIRBY, PENTAGON PRESS SECRETARY: Well, I wouldn't describe any line as thin or imaginary, Brianna. I would actually disagree with you on that. I'll tell you this, the intelligence that we provide to Ukraine is legal. It's lawful. It's legitimate. And it's limited. And we're very careful about what we share and when we share it.

(END VIDEO CLIP)

SMERCONISH: Yet, some current and former officials suggest that any limits the Biden administration has drawn for itself are arbitrary. No matter what the United States assesses might provoke Russia, that depends on the thinking of just one man, Vladimir Putin.

To be clear, the aid the U.S. has provided has helped bolster Ukrainians to fight off the Russians. But as the Biden administration increases the amount and lethality of that support, will that not lead to real war with Russia? I want to know what you think. Go to my website at smerconish.com, answer this week's survey question. Is the U.S. sharing of military intelligence with Ukraine worth the risk of further inflaming Putin?

Here with me to discuss is the former U.S. ambassador to NATO and former U.S. special representative for Ukraine, Kurt Volker.

Mr. Ambassador, thank you for being here.

So, facilitating MiG fighters to Ukraine, that was thought to be too provocative but battlefield intelligence that kills generals or sinks a ship, that's OK. Help me understand the parameters of our involvement.

KURT VOLKER, FORMER U.S. AMBASSADOR TO NATO: Right. Well, thank you for having me. And to start off on that, I would have thought we should have facilitated the pols providing the MiG 29 aircraft because the Ukrainians are in a war of self-defense. Russia has attacked them. They have killed thousands of people. They have killed civilians. They have committed war crimes. And Ukraine has a right to self-defense under the U.N. charter, Article 51, they have a right to defend themselves.

With that, why wouldn't a country like Poland say if the Ukrainians need MiG 29s, we'll provide them and why wouldn't the U.S. say, Poland, we got your back. You're a NATO ally. We'll be there for you? And similarly, information about where the Russians are when they're attacking the Ukrainians, I don't find that to be controversial in sharing that with Ukrainians at all. What the Ukrainians do with it, that's up to them. They're the ones defending themselves. We're not fighting the Russians. But sharing information or providing the weaponry, I think is perfectly fine.

[09:05:00]

SMERCONISH: OK. But at a certain point then we do draw a line. I'm going to put on the screen and I'll read aloud for you, this is also from "The New York Times" reporting and it says the following, not all the strikes have been carried out with American intelligence. A strike over the weekend at the location in Eastern Ukraine where General Valery Gerasimov, Russia's highest ranking uniformed officer, had visited was not aided by American intel and then the key line, the United States prohibits itself from providing intelligence about the most senior Russian leaders.

How come? Why is that off limits?

VOLKER: Well, I suppose this is a self-imposed restriction. There's no legal basis for it. But I think it's because if we thought of ourselves as directly helping the Ukrainians target Russian generals, then the Russians might find it fair game to target American generals in Syria or in Libya or wherever. So, we're probably self-limiting on that.

But I want to stress a different point here which is the Ukrainians have excellent intelligence of their own, which is probably how they did this. The Russians have had problems with command-and-control. Their secured communications have not always worked and they have been using the Ukrainian cellphone network occasionally, and this has helped the Ukrainians actually listen in and find out what's going on and find out where those people are. And if you're the Ukrainians defending yourselves, then why wouldn't you be targeting the command- and-control leadership.

SMERCONISH: Are you surprised that Putin has, thus far, exercised seemingly restraint? For example, it doesn't appear unless I'm not just aware, the public is not aware, cyberattacks that many had anticipated would have been launched against the United States.

VOLKER: Right. So, first off, it's hard to describe anything Putin has done as restraint. They have launched a major invasion of Ukraine. They tried to take the capitol. They lobbed rockets at cities, Lviv, Kyiv, Odessa and so forth. They've killed civilians. They've bombed schools. They've bombed hospitals. There is no restraint here.

Now, what you are seeing is some effective deterrence. Ukrainians have very good cyber capabilities as well. They have had their own cyberattacks against Russia. And the Russians know that we have very strong cyber capabilities. And so, if they were to use cyberattacks against the United States, I think they actually might fear that we would be using cyber offense against them to hit back. That's not troops on the ground. There's no body bags out of that, but I think they would be concerned about that.

So, when you look at the things that Russia has not done, they haven't done the big cyberattacks probably because they're deterred. They haven't done nuclear weapons, let's pray they never do. But I think they may be deterred from that at a strategic level and that we worry about is the tactical level. And even there, I think they have to be concerned that if they used an actual nuclear weapon that that would draw the U.S. or others to direct strikes against them in some way, and they have to be worried about that.

SMERCONISH: Quick final question, are we in a proxy war with Russia?

VOLKER: We are not, no. We are in a position of helping Ukraine defend itself against a direct Russian attack on Ukraine. So, this is not about two super powers sitting off somewhere and having their minions go fight a war against each other, this is Russia directly involved in trying to exterminate Ukraine, calling them Nazis and Ukrainians defending themselves and getting a lot of support from the rest of the world as they do so.

SMERCONISH: Mr. Ambassador, thank you so much for your time.

VOLKER: My pleasure. Thank you, Michael.

SMERCONISH: What are your thoughts? Tweet me at Smerconish. Go to my Facebook page. I will read some responses throughout the course of the program. From the world of Twitter, in World War II, everyone knew loose lips sink ships. There was a national campaign. I think the media should stop. Someone is going too far. This could be dangerous.

Well, Colleen, what you're essentially saying is with this in the public domain, "The Times" publishing that up to 12 Russian generals were taken out with intel that we supplied and the sinking of that ship, and who knows what else, will that -- this is my survey question, will that so inflame Putin that it's not worth sharing the intel? Go to Smerconish.com this hour and answer exactly that question. Is the U.S. sharing of military intel with Ukraine worth the risk of further inflaming Vladimir Putin? At the end of the hour, I'll give you the result.

Up ahead, if the Supreme Court overturns Roe v. Wade as an anticipate anticipated, there would be many unintended consequences. Could one be an increase in crime? I'll talk to a co-author of a controversial study which was included in the bestselling book "Freakonomics," do you remember that? It suggests access to abortion lowered crime rates.

Plus, the audience member who attacked comedian Dave Chappelle the on stage was not charged with a felony by the Los Angeles district attorney. The latest decision by rookie reformist prosecutors in L.A. and San Francisco who now both find themselves facing recall. Ron Brownstein is here to discuss.

[09:10:00]

Plus, despite his ex-wife's accusations of domestic abuse, Johnny Depp's fans are wholly supporting the actor in his defamation trial against her. Is there anything wrong with this picture?

(COMMERCIAL BREAK) SMERCONISH: With Roe v. Wade looking like it's going to be struck down, what might be some of the unintended consequences? Assuming the draft opinion is an accurate representation of how the case will finally be decided, there are several open questions. As "Politico" reported, they include can a state's anti-abortion laws apply beyond its borders? Can liberal states provide abortion care for people from out of state? What about abortion by mail? And what role can the federal government play in a post-Roe world?

[09:15:00]

Well, here is one more, what will be the impact on crime? Because there's data that suggests more abortion equals less crime. You remember the 2005 bestseller "Freakonomics," Steven Levitt and Stephen Dubner? It included a controversial chapter connecting the dots from a lower crime rate to the legalization of abortion based on a study that Levitt had done with his fellow economist John Donohue, who will join me in just a moment.

From 1991 until 2001, violent crime in the U.S. fell more than 30 percent, a decline not seen since the end of prohibition. And in May of 2001, after crunching the data, Levitt and Donohue published a study in "The Quarterly Journal of Economics." The impact of legalized abortion on crime. They wrote this, legalized abortion appears to account for as much as 50 percent of the recent drop in crime.

The underlying explanations suggested by Levitt and Donohue were controversial. They pointed to the concept of unwantedness. Children born to parents who didn't want or weren't ready for the child and how these children were more likely to have worst health and education outcomes as they grew up and ultimately, be more likely to engage in criminal behaviors. The thesis, in other words, unwantedness leads to high crime. Legalized abortion led to less unwantedness, therefore, abortion led to lower crime.

In amassing data, Levitt and Donohue divided states into three equal sized groups. The highest abortion rate states, the medium abortion rate states and the lowest abortion rate states. They found that by 1997, 24 years after Roe, there was roughly a 30 percent difference in what had happened to crime between the highest abortion states and the lowest abortion states.

The study upset both sides of the abortion issue. As "The Wall Street Journal" put it, conservatives were appalled that it found such positive consequences from a practice many of them found immoral. And liberals felt it smacked of eugenics. Critics also cited other factors and variables that the authors neglected which when adjusted made the co-called abortion effect on crime disappear.

Back in 2001, Levitt and Donohue projected what had the numbers might look like after 20 years if their thesis held. So, in 2020, they followed up by looking at what had actually transpired and they published a new piece. The impact of legalized abortion on crime over the last two decades. And looking at the data from 1997 to 2014, they found a similar pattern in states with the highest abortion rates, crime rates had fallen about 60 percent more than in the states that had the lowest abortion rates.

Look, it's a discomfortable argument. No matter where you stand on abortion, it turns an unhappy, private event into a positive public outcome. But even given all that now with the prospect of half the states readying to effectively ban abortion, what does this study suggest about the long-term impact on crime? One of the study's co- authors joins me now. John Donohue is a professor of all at Sandford University. He has a Ph.D. in economics.

So, Dr. Donohue, essentially what you're saying is that a generation of criminals were never born. Is that right?

JOHN DONOHUE, CO-WROTE STUDY WITH FREAKONOMICS CO-AUTHOR LEVITT ON ABORTION & CRIME RATES AND PROFESSOR OF LAW, STANFORD UNIVERSITY/PH.D. IN ECONOMICS: Well, essentially, it suggests that the cohort that was born after the legalization of abortion just came up with more benign life circumstances and adverse circumstances do promote higher rates of all sorts of socially unhelpful behavior, including crime.

SMERCONISH: We should be clear, and I remember interviewing Steven Levitt several times when the book came out. He impressed me as not having a dog in this fight. This is a very controversial subject today and his point to me those many years ago is, look, I'm a numbers cruncher. I'm just telling you what the data shows. Is that where you're coming from or are you an advocate?

DR. DONOHUE: No. When we did the study, we were just trying to understand one of the most profound, you know, social events in American history, which was the very dramatic drop in crime that was observed in the 1990s, and it turned out that the data supported this conclusion.

And then, we made predictions that if our thesis were correct, we would see about 1 percent drops in crime over the next 20 years, and that's what the subsequent paper actually indicated. So, we feel that the empirical evidence is fairly strongly supportive of the thesis that we originally articulated back in 2001.

SMERCONISH: So, if Roe v. Wade is overturned next month, as the draft opinion suggests, what do you expect will be the consequence on the crime front?

[09:20:00]

DR. DONOHUE: You know, in general, we have every reason to think that imposing restraints on women's ability to choose the formation in their family is going to lead to more adverse outcomes for children that are going to be born because of the mothers are not able to engage in this sort of family planning.

And so, the more states that restrict abortion, you will see that they will follow the patterns that our paper laid out. They will have upward pressure on crime rates, although, they won't experience that for, you know, at least 15 years because it takes about 15 years for someone to move into and actually crime-increasing age. SMERCONISH: So, if you're right that there will be, down the road, an increase in crime attributable to this Supreme Court decision, isn't the real lesson for policymakers get ready to provide the sort of social services that these children are going to require so as to rescue them or avert a life that might lead to crime?

DR. DONOHUE: Yes. Well, I think there are two things. One is that if you're going to remove the ability for abortion and you're concerned about the impact on crime over the next 20 years or so, you'd certainly want to reduce unwanted pregnancies through sex education, better contraception. And if those children are born into these more adverse life outcomes, I do think it's incumbent upon the government to try to take steps to improve the quality of their life over the next two decades.

SMERCONISH: Sum up. Critics were questioning the modelling that you and Professor Levitt used at the time. I think you're here saying that the passage of two decades has proven you correct. But for the benefit of someone who is new to your work in this regard, what is the take away?

DR. DONOHUE: Yes. So, the early work that we did had data that ended in 1996, and, of course, we were identifying phenomena that were really starting in 1991. So, the data that was available at time of the original study was more limited than what we have now.

And I do think that, you know, critics are always right to question any single study, but it's with the accumulation of data and the greater capacity to evaluate overtime that we now have a much more confident attitude that the original conclusions have been held up with the additional 20 years of data.

SMERCONISH: More abortion, less crime. That's what your data suggests, true?

DR. DONOHUE: Yes. Although, I would -- that's what the data suggests. But I would make the point that the critical factor is enabling women to choose the timing and selection of their family generation. And if they're able to avoid unwanted pregnancies, then all of the benefits that we saw that occurred because of abortion could be generated in that manner as well.

SMERCONISH: Dr. Donohue, thank you. It's provocative.

DR. DONOHUE: Thank you.

SMERCONISH: More social media reaction now. This comes, I think, from YouTube, from a YouTube page. What is it? So, why are we having increased crime now?

Well, there are a lot of other factors at play. What Levitt did at the time, and I went back and I, you know, reread and reminded myself, he did a LexisNexis search. I guess he couldn't even have done a Google search. And he wanted to see to what are people attributing the rise in crime of the '90s? And nowhere on the top 10 list did anybody factor in the change brought on by Roe v. Wade. That was the whole starting point for he and for Donohue.

Look, it's no less provocative today than it was 20 years ago. That's for sure. But I find it fascinating and well researched.

I want to remind you, go to Smerconish.com and answer this week's survey question, is the U.S. sharing of military intelligence with Ukraine worth the risk of further inflaming Putin? Register for the newsletter while you're there.

Up ahead, the assailant who tackled Dave Chappelle as he walked off stage at the Hollywood Ball had a knife in his backpack but the Los Angeles D.A. George Gascon did not charge him with a felony. Gascon and fellow first term progressive prosecutor, Chesa Boudin, of San Francisco, both facing recall efforts. Ron Brownstein is here to discuss why.

[09:25:00]

Meanwhile, another Hollywood icon, Johnny Depp trying to disprove his ex-wife Amber Heard's accusation of abuse all in front of front room cameras. Why would he want to air dirty laundry in this forum? We'll discuss.

(COMMERCIAL BREAK)

SMERCONISH: Are the prosecutors of two of California's largest cities about to lose their jobs because they're soft on crime? This week, Dave Chappelle was leaving the stage at the Hollywood Ball when a man leapt on stage and tackled the comedian. He was later found to have a knife that looked like a handgun. Although, the man, Isaiah Lee, was arrested for felony assault, the Los Angeles District attorney, George Gascon, announced his office would not pursue felony charges.

[09:30:06]

A spokesperson told CNN, "After reviewing the evidence, prosecutors determined that while the criminal conduct occurred, the evidence as presented did not constitute felony conduct."

Gascon and his San Francisco counterpart, Chesa Boudin, both find their jobs in jeopardy during their first terms over accusations they've been too soft on crime. Both won office after promising to confront structural racial inequities, reduce incarceration and toughen accountability for law enforcement, but now Boudin faces a June 7 recall election and opponents of Gascon are well on their ways to collecting the hundreds of thousands of signatures that they need by July 6th to prompt a recall election.

As Ron Brownstein, my guest, writes in "The Atlantic," "The successes of Boudin and Gascon's approach -- as measured by individuals who are kept out of prison and use the opportunity to stabilize their lives -- are inherently much less visible than the failures."

Joining me now to discuss is Ron Brownstein, CNN senior political analyst and senior editor at "The Atlantic" where he wrote this piece "Why California Wants to Recall Its Most Progressive Prosecutors." So, Ron, Gascon and Boudin, they are faced with this impression that they care more about the small minority accused of committing crimes than they do the large majority who want safety. Explain.

RON BROWNSTEIN, CNN SENIOR POLITICAL ANALYST: Yes. Thanks for having me, Michael. Well look, you know, they have, I think, structural problems that they're facing that are inherent in the goal to reform the criminal justice system. As you note, if your policy is to reduce the number of people who are incarcerated, either by not holding them on cash bail before their trial or not seeking sentencing enhancements which lengthened sentences, with both men are -- have done as a policy, you know, there might be a hundred people who are kept out of prison or kept there for shorter periods.

And 95 -- 96 of them might go back home, stabilize their lives, build a family, help stabilize their community, but they become invisible at that point. And the ones that we see are the four or five or seven or eight or how many who take that opportunity and re-offend.

There's a structural problem. There's a structural problem also because they have faced entrenched opposition from law enforcement really from day one. I mean, it's extraordinary the role that their own offices have played. In L.A., the Deputy District Attorney Union sued Gascon over his policies almost immediately and are openly voted to support the recall.

And, of course, they are being hurt because crime is going up on many measures in both L.A. and San Francisco. But, of course, it's going up as well in cities where you have hard line prosecutors and hard line kind of policing going on as well. And as your previous segment showed, the causes of crime are really complex.

So there are a lot of structural reasons that are kind of inherent in the mission that they have taken on to try to reduce incarceration. But I do think in addition to all of that in many ways the core of their problem is that they have appeared to many voters too flexible, too inflexible, too ideological and more worried about reducing incarceration and confronting the genuine structural inequities in the system than ensuring that everyone in the community feels as safe as possible. And that ultimately is the job.

As one political strategist said to me, when you're elected D.A. you are hired to do a job. And if you kind of don't want to do that job to its fullest, that creates problems.

SMERCONISH: This is the opposite. This approach it occurs to me is the opposite of broken windows for which we associate Rudy Giuliani and, you know, police in New York City in the late '90s.

BROWNSTEIN: Yes. I really feel this is a broken windows moment in both L.A. and San Francisco. And then in many ways the public's concern is more about a sense that order is being lost than it is about crime per se.

I think both of these D.A.s are getting spill over from the anxiety in both places about pervasive homelessness that seems out of control with cities in effect seeding control of their public spaces. You know in polling in L.A. there's no question that more people express concern about homelessness than they do about crime. The D.A.'s impact on that is pretty marginal relative to other players in the system.

But when you look at the large encampments that people see in L.A. and the large number of people on the streets in San Francisco, it's very difficult for many to go through their day without encountering someone who seems a danger to themselves and to others. And I think that sense of disorder, which as you point out, is above all what elected Rudy Giuliani mayor in 1993 in a race that I covered the first time, that I think is at the heart of the political nature that both Boudin and Gascon are facing.

[09:35:06]

SMERCONISH: Quick final question, Boudin, do you think he survives?

BROWNSTEIN: There is -- I have not found anyone in San Francisco, any political analyst in San Francisco who thinks that he can survive. Gascon is a little more on the bubble mostly about whether they will obtain enough signatures. A lot them get disqualified as you know in the review. But I think survive are not for Gascon. There's a clear message here that you can't lose sight of public safety even if you are pursuing reform and confronting discrimination. It's a full job and you have to do the full job.

SMERCONISH: We're soon going to find out. Ron Brownstein, great piece. Thank you so much.

BROWNSTEIN: Thanks for having me.

SMERCONISH: Checking in on your social media. From the world of Twitter, what do we have?

Isn't assault a felony generally? Throw in a knife and you have with a deadly weapon. What am I missing?

Mike, a prosecutor has got discretion, I would argue, in a case like this. And if they wanted to charge this guy as a felony, there were any number of ways that they could have done so. It's just sort of emblematic of the mindset of these progressive prosecutors and it's going to be very interesting to see whether Boudin can hang on. And if he doesn't, then maybe Gascon will be next and there will be a lot of others paying attention from the sidelines like Krasner in Philadelphia.

I want to remind you make sure you're answering this week's survey question at Smerconish.com. Is the U.S. sharing of military intelligence with Ukraine, is it worth the risk of further inflaming Putin?

Still to come, watching Johnny Depp's fans rally around him as he and ex-wife Amber Heard trade abuse accusations in court, I can't help but wonder does this prove the adage that there's truly no such thing as bad publicity?

(COMMERCIAL BREAK) [09:41:25]

SMERCONISH: Does the Johnny Depp/Amber Heard court battle prove the old adage, there's no such thing as bad publicity or that women are incredibly tough on other women? Despite being in a MeToo era a man accused of horrible things seems to be getting most of their support. Those are my thoughts watching the hoards of loyal Johnny Depp fans most of them female inside and outside the Fairfax, Virginia, courtroom where Depp's $50 million lawsuit against his ex-wife is being held.

I was surprised Depp wanted to go to court because it opens the door to the airing of all sorts of dirty laundry about his reputation and behavior and he already lost a similar lawsuit in the U.K. against a newspaper. The judge there found that Depp had assaulted Heard a dozen times including several that put her in fear for her life.

The current case stems from a 2018 op-ed that Heard published in "The Washington Post" headlined, "I spoke up against sexual violence and faced our culture's wrath. That has to change." Heard, an actress and ACLU ambassador on women's rights, had filed for divorce in 2016 and asked for a restraining order, citing abuse. She wrote that after speaking out she lost a movie role and endorsement deal and received death threats. Quote -- "I had the rare vantage point of seeing in real time how institutions protect men accused of abuse."

Though she never named Depp in the piece, he argues it damaged his career that her allegations led to him being denied a sequel to "Pirates of the Caribbean." He denies all claims of abuse and his attorney called her allegations a hoax.

Heard has countersued Depp for $100 million. Her lawyers have said the op-ed is not only true but is protected by the First Amendment. During Depp's testimony he denied ever physically abusing Heard and called her a liar who is trying to ruin his life.

(BEGIN VIDEO CLIP)

JOHNNY DEPP, ACTOR: She threw the large bottle, and it made contact and shattered everywhere. Then I looked down and realized that the tip of my finger had been severed.

(END VIDEO CLIP)

SMERCONISH: But in Heard's testimony this week, she recounted episodes of Depp drinking, doing drugs and going into jealous rages and hitting her.

(BEGIN VIDEO CLIP)

AMBER HEARD, ACTRESS: I didn't feel pain. It was just the pressure on my pubic bone. And I remember looking at all the broken bottles, broken glass. And I remember just not wanting to move because I didn't know if it was broken. I didn't know if the bottle -- that he had inside me was broken. I couldn't feel it.

(END VIDEO CLIP)

SMERCONISH: His long-time fan base didn't seem swayed by Heard's story or other evidence such as Depp's profane text messages and audio recording. As "The Washington Post" reports the #justiceforjohnnydepp has received nearly 7 billion views across TikTok and regularly trends on Twitter. By comparison the #justiceforamberheard has about 25 million views. Heard's testimony picks up on May 16 with closing arguments expected on or about May 27.

Joining me now is Howard Bragman, a P.R. and crisis expert who is chairman of LaBrea Media. He's worked with Sharon Osbourne, Wendy Williams, Chris Brown, Nick Cannon and others. Howard, I went to your Web site and you have listed your specialties.

[09:45:01]

One of your specialties is dealing with public humiliation. Some might think that would apply to Johnny Depp, but so far it doesn't seem to have impacted his public opinion standing. How come?

HOWARD BRAGMAN, CHAIRMAN, LABREA MEDIA/CRISIS EXPERT: You know, you were talking about in the introduction about what would happen conventionally, Michael. You were talking about the fact that most people wouldn't go to trial, particularly after they lost. Most people wouldn't do it in the first place because you open up everything in these depositions.

And we have seen every humiliating text message. We have seen every email. We have heard recounts of every episode in their entire relationship and other things. That's the -- quote -- unquote -- "conventional wisdom."

But you know what? Johnny Depp has never been conventional. And he didn't want to play this conventional. And by not being conventional it seems to be working for him.

Let me make one point really quickly, OK? In many cases your attorney is going to say -- and let's look at Amber, I want you to dress very conservatively. We were joking the other day that Amber looks like she's wearing the lady Brooks Brothers' collection, right? These kind of school marm outfits and these Oxford shirts.

Johnny is a version of Johnny. He has got sunglasses, eye liners, tight suits, dark shirts. And that authenticity seems to be working for him, Michael, in some strange way. But he knows who he is and the public likes him.

SMERCONISH: If he loses this trial, if she is successful, is he ever going to eat in this town again?

BRAGMAN: I kind of think he is in this unusual way and I've seen it many times. Somebody gets humiliated, somebody gets sued, somebody goes through something really horrible and instead of ruining their career it kind of reminds people why we liked him.

And you play this game on two levels. One is certainly the court of law. And two, is the court of public opinion. And whatever happens in the court of law Johnny certainly seems to be winning in the court of public opinion right now.

And I'm not saying Disney is going to go and do a movie with Johnny and, you know, Pirates, you know, 11, that is certainly not going to happen that a big corporate studio is going to go jump out. But will he get some endorsement deal overseas or a movie overseas or an independent movie? Yes. Somebody is going to want to figure out a way to harness all this love for Johnny that's out there right now and turn it into dollars. This guy has made --

SMERCONISH: Quick final -- quick final observation, if I may. It's the era of #metoo, and in this context it seems to me anecdotally callers to my radio program, women are more circumspect of Amber Heard than are men. Your comment is what?

BRAGMAN: You know, it's this crazy world we're living in, women are not responding to Heard. Johnny got to tell his story first. And he told it well. And women, everybody responded to him.

There's a difference when you're a movie star and you already have this fan base. You just have to bring them back. And that brought back men, women and many people who grew up on him. And she's paying the price for that.

Hopefully, for her team, she's going to be able to get some of that back when her story comes out. That's yet to be seen.

SMERCONISH: Howard, thank you for the analysis.

BRAGMAN: Thanks a lot, Michael.

SMERCONISH: The case is a train wreck. I stayed away from it until this week and then, you know, like "The Godfather," I got sucked in by it.

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

Both narcissists. Depp will not benefit from this. No one really cares but it is like watching a Netflix hit. You can't stop watching the train wreck it is.

Kelly Ann, no joke. I didn't get to the end of "Ozark" because of this trial. I was like on schedule to finish "Ozark" and then came this trial and I can't take my eyes off of it.

Still to come, more of your best and worst tweets and Facebook comments and we'll give you the final results of the survey question. Go right now to Smerconish.com, answer the question. Is the U.S. sharing of military intelligence with Ukraine, is it worth the risk of further inflaming Putin? Register for the newsletter while you're there.

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[09:54:08]

SMERCONISH: Time now to see how you responded to the survey question at Smerconish.com. Here it is. Is the U.S. sharing of military intelligence with Ukraine worth the risk of further inflaming Putin?

Here are the results. Wow, I'm floored by that. I did not see that coming. Twenty-three thousand and change have voted, and 94 percent of you say, yes, it's worth it.

Don't misunderstand what I'm saying. I want to give every advantage to Ukraine, but I feel like we've been lulled into a perspective here of we don't have to worry about Putin. It's amazing if you stop and think about it. If the reporting is accurate, and I suspect that it is, our intel, and we're giving all these weapons and all this financial aid led to up to 12 -- you know, of the generals being taken out and the sinking of that ship and who knows what else. And people don't seem to have a level of concern. Like how far can we push Putin? Hopefully we can keep pushing him.

[09:55:01]

Social media reaction, what do we have? Just surprised by the margin of that.

Smerconish, why are you pushing the Russian talking points about proxy wars?

Charles, I'm pushing -- I'm pushing talking points by simply highlighting the reporting of the week that says that our intel led to this. What do you want me to do? Ignore that story? I'm not going to ignore that story. I'm supportive of what we're doing.

I hope I'm making that clear. I'm just keeping in my mind that this guy is someone that you need to be concerned about. And I think we've been lulled into a position that we can do anything with regard to him. That's my view.

Here's my more important view -- happy Mother's Day to all moms tomorrow. I'll see you next week.

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