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Smerconish

The "What-if Election: Could Trump Or Biden Be Replaced?; Untangling The Legal Mess; Would Conviction Really Hurt Trump? Aired 9-10a ET

Aired February 17, 2024 - 09:00   ET

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

[09:00:00]

VICTOR BLACKWELL, CNN ANCHOR: And like that country album was an education for Ray Charles time, no doubt, Beyonce's album will be an education for ours about the true origins of country music, and perhaps, who really peed and called the music their own.

Thanks for joining me today. I'll see you back here next Saturday at 08:00 a.m. Eastern. Smerconish is up next.

MICHAEL SMERCONISH, CNN ANCHOR: So what would happen then? I'm Michael Smerconish in Philadelphia.

We know the front runners, but is there November showdown a certainty? Among the looming questions is what if? What if Donald Trump is convicted? Well, this week ended with the judge in Trump's civil fraud case dumping him for nearly $355 million and preventing him from doing business in New York for three years. And we're waiting on more potential explosive legal outcomes, the Supreme Court immunity decision, the Georgia interference case, the January 6 federal prosecution, the declassified documents found at Mar-a-Lago, and now the stormy Daniels business records case scheduled for trial next month.

For most candidates in most election years, that would surely be a big bump in the road. But what's the alternative? He's light years ahead of the sole remaining GOP contender. And this comes one week after Biden took a hit regarding his age and memory from the special counsel's report on his own classified documents case, which explains why despite how far we are into the primary process, both party front runners still feel a bit vulnerable. As "The Washington Post" recently put it, "What if November's likely Biden Trump rematch suddenly isn't?"

Meaning it's possible that we might see the nominating contests suddenly up ended, and one or both of them is replaced. Look at these recent headlines, "Can Democrats replaced Joe Biden?" "After Hur's Biden age comments, could any Democrats really take his place?" "Could Democrats replace Biden as their nominee?" "Democrats might need a plan B."

"Donald Trump has a big problem ahead." A whole swath of GOP voters appears firmly committed to not voting for Trump in November. "What if Trump is elected with criminal charges still looming?" "What happens if a presidential candidate is convicted?" On a recent episode of his podcast, Ezra Klein of "The New York Times" lobbied for Biden to drop out and for leading Democrats like President Obama to convince him to do so.

The question also was weighing heavily on the minds of voters on both sides. According to a brand new Monmouth poll, 48 percent of registered voters believe Biden is either very likely or somewhat likely to be replaced as the Democratic Party's nominee. And for Trump, 32 percent say it's very or somewhat likely that his legal troubles will result in him not being the Republican nominee. You know who else is thinking along those lines? Nikki Haley, here's what she told CNN, Kaitlan Collins just last night.

(BEGIN VIDEO CLIP)

NIKKI HALEY (R), PRESIDENTIAL CANDIDATE: Seventy percent of Americans don't want to see Trump or Biden. Fifty-nine percent of Americans think Joe Biden's too old and think Donald Trump's too old. And a party that gets rid of their 80-year-old candidate is the party that will win. There will be a female president of the United States. It will either be me or it will be Kamala Harris.

If Republicans nominate Donald Trump, it will be Kamala Harris. But if we can go and do what we're trying to do, we're going to make sure that it's me.

(END VIDEO CLIP)

SMERCONISH: So is either one of them more vulnerable? I want to know what you think. Go to my website at smerconish.com and vote on today's poll question, who is more likely not to be their party's nominee, Trump, or Biden?

Now at this stage, if a candidate dropped out for any reason or if a party did want to change horses, how exactly would that even work? Last week when I asked James Carville if it was already too late, he said this.

(BEGIN VIDEO CLIP)

JAMES CARVILLE. DEMOCRATIC STRATEGIST: It's never too late. But the leg gets the more confusing the process gets in and he does a person called Elaine Kamarck who knows more about this anything -- anybody -- anyone in the world. She written books on it, and I'm kind of surprised she hadn't been interviewed yet because she had massive information on what happens by what date.

(END VIDEO CLIP)

SMERCONISH: So when Carville speaks, I listen, Elaine Kamarck joins me now. She's founding director for the Center for Effective Public Management and senior fellow for governance studies at the Brookings Institution. Author of, among other things, "Primary Politics, Everything You Need to Know about How America Nominates its Presidential Candidates."

Elaine, thank you for being here. Let's break it up into four time segments now until the conventions, post-convention until election, election till Electoral College, and Electoral College until inauguration, what happens if a candidate drops out between now and the convention?

[09:05:12]

ELAINE KAMARCK, SENIOR FELLOW IN GOVERNANCE STUDIES, BROOKINGS INSTITUTION: OK, great questions. One thing our viewers should understand is that the delegates at the convention actually make the legal decision on who is nominated. So during the primaries, what you're doing is you're allocating delegates to candidates, but you're not choosing the actual people who will be delegates. And that process usually takes place after the primaries. And so, what would happen is, depending on when the candidate dropped out is their names probably wouldn't be on the primary ballot, they wouldn't be running on a ballot, they'd be all Joe Biden delegates or all Donald Trump delegates.

But anybody wishing to jump in the race, if one of those candidates got out, we'd have to go actually try to get people elected as delegates who were sympathetic to them. And that is a party run primary takes place, kind of similarly, ironically, in both parties all across the country according to the states.

SMERCONISH: Nikki Haley, still in the race, albeit in second position by a wide margin. My assumption is she hopes to arrive at the Republican Convention, if she stays in with a voting bloc, right, in the hope that if something were to happen to Trump's candidacy, she'd have at least a block if not enough votes.

KAMARCK: Absolutely. If you -- if we ever got into a situation where the decision actually ended up at the convention, anyone who has a coherent bloc of delegates, Nikki Haley, Ted Cruz, by the way, had won in 2016 when they made a sort of aborted effort to stop Trump. So anybody who arrives at a convention with a bloc of delegates is going to be in a very powerful position.

SMERCONISH: OK, convention occurs, Biden and Trump are nominated. Something happens between the convention and Election Day. Now what?

KAMARCK: Well, both parties have provisions in their rules for the chairman of the party to call into session the full Republican National Committee or the Democratic National Committee. The Republican National Committee's a little less than 200 people, the Democratic National Committee's around 400. And those committees are authorized to choose a nominee for their party.

SMERCONISH: While we really do vest tremendous control of this whole process to the parties, let me go to scenario number three. So scenario three is the convention until the Electoral College has now taken place. Or I should really say the election until --

KAMARCK: The election. SMERCONISH: -- the Electoral College gets together in December, right?

KAMARCK: Right. And that's a little murky. Again, just as -- when you vote for -- in the primary, you're actually voting for delegates. When you vote in the presidential election, you are actually voting for electors. Some states actually put the names of those people on the ballot. They meet in the second week of December in their state capitals, and they sign a certificate of ascertainment, it's called little old fashioned, and that certificate goes to the United States Senate.

Now, those people generally vote for whoever their party's nominee was, if their party's nominee has dropped out, for some reason, is not around for some reason, then we're in a little bit of uncharted territory, because the laws that say you have to vote for the winner of your state, obviously, don't help you very much, but somebody in theory because somebody else could be nominated.

SMERCONISH: OK.

KAMARCK: And could be elected.

SMERCONISH: Thank you for playing along with me. Thank you for playing along with me. This is exactly what I hoped that you would deliver. There's a lot of discussion about vice presidential candidates, the vice president, does it by rights fall to the vice president of a successful ticket? In other words, there's an election that the person who is at the top of the ticket, for whatever reason is no longer in the drill, does it by rights go to the VP or not necessarily?

KAMARCK: Not necessarily, although for all practical purposes, it would probably go to the VP. I mean, that's probably the way the politics would work. But you know, the electors would have to vote and sign that certificate and send it to the United States Senate.

SMERCONISH: OK, and I think you've anticipated then my final scenario, which is the Electoral College has met, they voted in December, we could even be beyond the January 6, we all remember the significance of that day. Now if, for whatever reason, the person who's won the election is in the presidential elect position, but they can't or won't go. It sounds like you're saying it would be the VP in all likelihood.

[09:10:03]

KAMARCK: Well that -- it would be the VP, not even in all likelihood because at that point the constitution, there's an amendment to the constitution, which says very clearly, if someone was elected and the president elect cannot be inaugurated, then the Vice President is inaugurated. So at that point, the constitution clicks in.

So, up until that -- up until the Electoral College meeting, really, this is under the purview of the political parties, because political parties are the ones who have the authority, legal authority to nominate presidential candidates. Once we get to the Electoral College and the Electoral College has spoken, then the constitution kicks in, and it's very clear that it would be the vice president.

SMERCONISH: OK, quick observation from me reaction from you, you seem pretty calm about all this, like, hey, it's all right, we've got rules. We've got process. If for whatever reason, there should be a change in the 11th hour, we can handle it.

KAMARCK: Yes. Well, that's right. I just want to remind the voters that from 1831 to 1968, both political parties nominated candidates in conventions. And while it may take a little while for the muscle memory to come back, the political people who are elected as delegates would probably know how to do this. I think you guys in the press would have the time of your lives covering this very unusual process.

But there is a process, there is a history to that process. And I think both political parties could in fact, nominate a replacement if they needed to.

SMERCONISH: Elaine, that was excellent. Thank you so much.

KAMARCK: You're welcome. Thank you.

SMERCONISH: Thank you to the Ragin Cajun, Catherine (ph), he gave us a good tip, right? She was the person.

I want to remind you answer the poll question today at smerconish.com. Have some fun with this, who's more likely not to be their party's nominee, Trump or Biden? What are your thoughts? Hit me up on social media. I'll read some responses. Throughout the course of the program.

From the world of X, formerly Twitter, Biden, physically frail, mentally waning. Trump, justice system squatter chaos cultivator. Either way, the responsibility for the wellbeing of 350 million should not be in the hands of either Biden or Trump. America deserves far better and shouldn't suffer these two.

Well, Ian, I don't know what to tell you. There's a lot of third party action going on, controversial, people trying to figure out like, does that pull from this candidate or that candidate? I don't think we know. We learned about Joe Manchin this week. But I don't think we yet know what all the choices might be.

And my goodness, there are so many intangibles on radio every week. I say there are people whose names we don't even know who are going to play a significant role in the outcome of this election. There are events that we could never imagine. Did you watch the whole Fulton County spectacle? I mean, could we have ever anticipated how that was all going to go?

Up ahead, it's getting so that you need a scorecard to keep tabs on Donald Trump's courtroom battles. This week alone, there was a $355 million price tag in his civil fraud case. And as I just referenced Fani Willis's riveting pushback against allegations of impropriety, it is Georgia election interference case and on and on. Thankfully, we've got Elie Honig here to call balls and strikes.

I hope you've signed up for the free and worthy smerconish.com daily newsletter, you get 20 varied news links every day that I hand select and look at the editorial cartoons. There's JFK looking at RFK Jr's Super Bowl commercial and he's got a reaction.

(COMMERCIAL BREAK)

[09:17:43]

SMERCONISH: It's an election cycle like no other. Candidate Trump facing legal assault from all angles. Trump and his business were hit with a nearly $355 million verdict in his New York civil fraud case and has been suspended from running a business or getting loans in New York State for three years.

Trump responded in a long post on Truth Social calling the decision a "complete and total Sham. There were no victims. No damages. No complaints." And he said this to reporters last night at Mar-a-Lago.

(BEGIN VIDEO CLIP)

DONALD TRUMP (R), PRESIDENTIAL CANDIDATE: A crooked New York state judge just ruled that I have to pay a fine of $355 million for having built the perfect company, great cash, great buildings, great everything. And it's election interfering, so I just want to thank you for being here. Will appeal. Will be successful.

(END VIDEO CLIP)

SMERCONISH: Trial has been set for March 25 in New York DA Alvin Bragg's criminal business records case about Trump's hush money payments. Even in the seemingly dormant federal case based on the classified documents at Mar-a-Lago, Judge Aileen Cannon on Thursday rejected Trump lawyer efforts to delay pretrial motions. And next week, we may hear from the Supreme Court on how SCOTUS will handle the federal January 6 case, which in the absence of a state could be relisted for trial.

And then of course, there's Fulton County, Georgia where colorful testimony this week has not yet resolved whether DA Fani Willis and special prosecutor Nathan Wade will be able to continue their state RICO case against Trump.

Robin Givhan from "The Washington Post" did a nice job in recreating in print the spectacle that played out on every cable T.V. news network including this one, she wrote this, she sat with her body positioned at a slight angle and rested her fingers on her cheek. Sometimes she leaned forward into the microphone, but mostly her posture was one of powerful repose. If there was a female equivalent to manspreading, that tendency of men to sit with their legs akimbo as they take up more than their share of space on a bench or a bleacher, Willis's stance may well be it, she filled the room with her presence.

At a minimum Willis and Wade, I say, have an appearance problem, damned if they did and damned if they didn't. If the relationship began before Wade was appointed, he should not have been chosen. And no relationship should have begun after he was solid acted. The closer call is whether Willis should be disqualified under a Georgia Supreme Court standard where a prosecutor has, quote, "acquired a personal interest or stake in a defendant's conviction."

[09:20:11]

Wade has billed more than $650,000 for his work and the two have traveled together during their relationship. I don't know what Judge Scott McAfee is going to do. I only know that Fani Willis made for captivating T.V. and might have a cable career in her future.

Joining me now is Elie Honig, CNN Senior Legal Analyst, former federal prosecutor.

Elie, let's cover the landscape as quickly as we can of these Trump cases. I'll begin with the federal January 6 case we might hear as I made reference next week on how SCOTUS is going to handle the possibility of a stay. React to that.

ELIE HONIG, CNN SENIOR LEGAL ANALYST: Yes, Michael, this is the number one most important pending issue right now. And it could hit at any moment. We're not going to get notice from the Supreme Court, hey, we're rolling tomorrow at 10:00. It's just going to drop.

If they reject this case, it is going back down to the District Court. And we will very likely have a trial date set on the federal January 6 case for late spring or early summer. But if the Supreme Court takes the case, that's going to take several months to resolve, and that will throw into real doubt whether there's any real chance of trying this case before the election. And if you need a prediction from me, I'm going to be bold here and say it's 50-50. I can see absolutely compelling reasons why they would and would not take this case.

SMERCONISH: OK. So, if that case is relisted for trial, it still means case number two, that the March 25 Alvin Bragg Stormy Daniels case is going to be first.

HONIG: Yes, one of the big headlines this week and maybe flew under the radar a bit is this trial date is on, it is real, March 25. And for a long time, Michael, it looked like that trial date was not going to hold because it conflicted with Jack Smith's January 6 case. And the DA and the judge on the state case had signaled, we're going to step back. Well, now Jack Smith's case is pushed off at least a couple months. The DA's case is all alone.

And this week, we reaffirmed in court, they went in and they said, this is the trial date, Trump's team tried to get a push back, judge said nope. And so, Michael, six weeks or so from now, that case is going to be picking a jury in Manhattan. This is real and this is happening.

SMERCONISH: So I'm not saying that Trump walks on the case, but I continue to believe it's the weakest of these cases and it reminds me of the John Edwards issue. Was the money paid personal or was it political? It's tough. I mean, talk about 50-50, how do you see that?

HONIG: Yes, it's certainly the least serious of the four indictments. I don't think anyone can question that. I think it's a tricky case. It really has to do with how they booked these payments as legal fees. And you have to tie that to Donald Trump.

And, Michael, really important to know, even if Donald Trump is convicted on this case in Manhattan, I practiced in New York, I've talked to a bunch of New York practitioners, even if it's the most serious variation of those charges, he is very likely not looking at a prison sentence. So, in a sense for Donald Trump, the stakes are super high. Obviously, he wants to avoid a conviction. But yes, this is the least serious of the four cases and now most likely to go first.

SMERCONISH: Elie, the sleeper, all of a sudden, I'm saying to myself, wait a minute, we're not paying enough attention to Mar-a-Lago, Judge Aileen Cannon on Thursday refused to delay the pretrial practice. That case is listed in May. Might we see that tried before the political cycle is run its course?

HONIG: You're right. This one has somehow made its way to the backburner. What happened this week in the last couple of weeks, it's really interesting is, Trump has made yet another motion to Judge Cannon to move that date back from late May, and she has denied it. Now, there are ongoing issues about production of classified documents, they had long secret proper, but secret meetings this week with the judge. So there's still a chance that one moves.

But as of now, Judge Cannon has kept to that trial date for late May. And that may well stay. And if it does, then that's going to cause even further traffic jam on the calendar.

SMERCONISH: We have to talk about what just played itself out and is still playing itself out in Fulton County. I couldn't take my eyes off it. The very narrow issue, Fani Willis, does she have a personal interest now in the prosecution of Donald Trump? I've already said and you heard me say in the setup, the appearance is terrible on appearance alone, perhaps she's deserving of disqualification, but I think far less clear is the personal stake aspect and that showing and whether it was made, How do you see it, Elie?

HONIG: I agree, Michael. First of all, the moment when Fani Willis took the stand was more dramatic than anything I've seen in a movie. I mean, I was on air, we gasped. I mean, because it was a question of whether she was going to testify. All sudden she shows up and basically storms the witness box.

And I agree with the witness -- the expert you said earlier, I thought she was a powerful presence in the witness box. Now, I also believe the district attorney throughout this case has displayed questionable too shaky prosecutorial judgment. She was thrown off a prior part to the case because of a political conflict of interest, she has made inappropriate public statements about the case, and whatever the financial interests may be, she should not have been having a relationship with somebody working under her on this case.

[09:25:12]

That said, I'm not so sure that the defendants, the people who are challenging her, made out what they need to make out in terms of a financial conflict of interest. That came through as murky at best. There was some testimony about Fani Willis reimbursing Nathan Wade with unspecified amounts of cash. I'm not sure that's enough, though, to make out what those defendants have to show as a matter of law to get Fani Willis disqualified from this case.

SMERCONISH: It's funny that you describe your personal experience, because I was listening to the CNN coverage on Sirius XM, and when it became obvious that she had shown up and was essentially demanding to testify, I'm like, I got to watch this, radio is not good enough in this case.

OK, $355 million, you saw what the former president said on Truth Social, Elie, isn't he correct in saying like, where are the victims? This is not like Bernie Madoff, where there's somebody standing there, who's -- that their life savings that's been stolen from them? I recognize New York law allows this to take place, but respond to Trump making that assertion.

HONIG: Yes, as a very technical matter, Michael. And in the decision, the judge goes out of his way to stress this, it doesn't technically matter if you have typical victims, people who get ripped off, but Donald Trump is correct when he says there's no victims in the traditional sense here.

Usually when you handle the fraud case, there's stockholders, investors, members of the general public who have been ripped off. And it is a fact in this case that the, quote unquote, "victims," to the extent there were any, were the banks, they are sophisticated billion dollar operations. They made these loans, they got repaid, they got repaid with interest, but the judge does a very technocratic job of sort of weaving around that. He says, legally, it doesn't matter. So I think there's fair questions about whether this penalty is fair or not.

I do think it's worth noting, the judge actually could have sentenced the Trump Organization to corporate death, but chose not to. Instead, he's sort of giving them corporate rehab. He's basically saying, Donald Trump and your sons, you're suspended for a couple years, we're going to install a monitor, a former federal judge Barbara Jones, who's very good at this, who's going to try to bring the company back and she's going to keep an eye on it. So, the judge did pull up short there, but Donald Trump for all his bluster and there's plenty of falsity in what he said yesterday and what he says every day, he is right to note that there are no victims in the traditional sense of that term.

SMERCONISH: Well, can I just say quickly that the size is so much that I think it undercuts its credibility. Like if the verdict against Trump had been $11.6 million, you'd think that there's some rationale to it, $355 million?

I've got to get to one other thing, Elie, you wrote -- put up on the screen what Elie just published if you don't mind, Catherine. You wrote, frankly, something you said to me here last Saturday, you did it for New York Magazine, "The real Biden documents scandal. It's not the old-man stuff." And the White House did not take kindly to your opinion. In fact, we'll put up on the screen now what the reaction was from the council's spokesperson, I'm limited on time. There they are. They say, "It's an embarrassingly false assessment by Elie Honig." Give me the 62nd version on this.

HONIG: I respectfully disagree with the White House. They're entitled to their opinion. The basis of my article is the fact, the fact that Joe Biden is on tape in 2017 after he leaves the vice presidency saying, quote, "The classified stuff is downstairs."

SMERCONISH: Down stairs.

HONIG: And I say, right there --

SMERCONISH: Right.

HONIG: -- is the biggest story from this report, because that shows that Joe Biden knew he had classified materials in his home after leaving the vice presidency. Forget about all this stuff about the old man and feeble memory, that to me is legally irrelevant. It was sort of overkill, mostly irrelevant and overkill. But that shows us that contrary to what Joe Biden and his spokespeople have been telling us for the last year or so, this was not all an unknowing accident. He knew in 2017 he had classified documents, not all of them, but he knew he had some of them downstairs.

And to me, that's a really important revelation.

SMERCONISH: Right. He knew it, he knew it. He shared it, right? He knew he had the information, he possessed it, and he shared it, three different things.

By the way, everybody can today direct all of their vitriol to Elie, because he's the one who just made that observation, not to the host of this program.

HONIG: I'll take it.

SMERCONISH: Thank you, Elie. I appreciate it. I appreciate it as always.

HONIG: Thanks, Michael.

SMERCONISH: From social media, formerly Twitter now X, what do we have? Can you please report accurately this morning, Michael? Let's not spin this as unfair because it's not. He's a crook and a con and has always been.

Karin, I was simply making the point as I just made to Elie Honig that it's so highly unusual that you would see someone gets stung for civil fraud in circumstances like this.

[09:30:00]

And I frankly, as an attorney, as one who, you know, in a prior life was looking to score big verdicts, I found it a little incredible because of the size of that number. Really? Was there a justification for $355 million when you can't show me one person, one bank, who is standing there having been defrauded by Donald Trump? Think about that.

And I want to remind you, please vote at Smerconish.com on todays' poll question. Who is more likely not to be their party's nominee, Trump or Biden?

Still to come, Nikki Haley and Democrats have at least one thing in common. They're pinning their hopes on Trump's legal peril, finally, crashing down on him. Are they wrong to do so? I'll ask a veteran pollster, Neil Newhouse. He's here next.

And here's another exclusive gem from one of this week's Smerconish.com newsletter cartoons. This is from Pulitzer Prize winner Steve Breen. Great, well done.

(COMMERCIAL BREAK)

[09:35:09]

SMERCONISH: Why hasn't Nikki Haley folded yet? The South Carolina Republican primary one week from today the latest polls in the state showed that its former governor is trailing Donald Trump there by 35 points, and nationally the numbers are equally unfavorable for her. The Real Clear Politics average shows her trailing by nearly 60 points.

No doubt Haley sees all the legal tumult surrounding Trump and wonders if a criminal conviction or the collective weight of so much pressure might finally cause his campaign to collapse. And yet, when Trump became the first former president in U.S. history indicted on criminal charges and then felony counts kept mounting, he kept rising in the polls. The whole idea that any of this storm will actually dampen Trump's chances is far from certain.

Democratic pollster Mark Mellman, no fan of Trump, recently pushed back against those who believe a Trump felony conviction will help him defeat and help him -- help Joe Biden defeat him. He said, "Trump's supporters are only slightly more likely to abandon him if he is convicted."

My next guest, pollster, Neil Newhouse, similarly said this, "In any other decade, this would be more than enough to kill a presidential contender in the crib. That's no longer the case, particularly for Donald Trump."

Neil Newhouse joins me now. He's a GOP pollster who three times won pollster of the year, worked for four presidential campaigns, including his lead pollster for Mitt Romney in 2012. He's a partner and co-founder of Public Opinion Strategies. Neil, nice to have you back. Let's distinguish between primary and general election voters.

NEIL NEWHOUSE, GOP POLLSTER/FORMER ROMNEY POLLSTER: All right?

SMERCONISH: Talk to me about the primary.

NEWHOUSE: Yes, the primary. These are the most committed in the primary. On the Democratic side, they're more liberal. They're more committed. They're -- they're, you know, more minority oriented. On the Republican side, significantly more conservative evangelical, older voters. These are the most committed voters, the most conservative voters in the electorate.

And so, when you -- when you win a Republican primary, generally most candidates kind of, you know, tend to, you know, gravitate towards the middle for the general election. But these are -- these are committed and committed to their -- to their party, to a candidate. And they are driven more by voting for a candidate who they believe in, whose policies they believe, rather than someone who may have, you know, they -- others may think have a better chance of winning a general election.

SMERCONISH: OK. Something tells me you're about to now reference independents and suburban women. Go ahead and talk about the general.

NEWHOUSE: Yes. General election is a different game. General election, you depend on some of those swing voters, voters who are not as strongly committed to the party. This would include in this upcoming election Hispanic voters, independent women, suburban women, independents overall.

Voters who -- for whom politics is -- is not something that they talked about over the dinner table every night. And so, these voters don't pay as much attention. They are late deciders in campaign and they are driven by -- you know, by pocketbook issues.

The challenge with many of these voters is they are late deciders. They don't decide until the last few weeks of an election. And so, that -- and there are very few of them, especially an election like this. Michael, you've got potentially two candidates who have -- you know, who have a majority of voters who are unfavorable towards them.

I mean, Biden's numbers are 36 favorable and 54 unfavorable. And Trump's are not much different at 38 to 52. So, think about it. A majority of voters in the country have a negative impression of each of the two likely presidential candidates. Fewer than 40 percent have a favorable opinion of them.

And the election -- he took -- swing voters in this election. The swing voters in this election are going to be around the 20 percent or so of the electorate who don't like either one of these candidates. You could call them double-haters.

They -- in a sense it's almost like a nose-holder election. Voters is going to hold their noses and vote for somebody they don't like at the end. And so, that's what's -- that's what's going to keep this --

SMERCONISH: And, Neil, X --

NEWHOUSE: Yes. SMERCONISH: X, the unknown, among other intangibles, these criminal prosecutions of Donald Trump and whether they get tried. And I would also say, I think it also matters greatly, which of them might get tried.

I can see a scenario here where the Alvin Bragg prosecution relative to the Stormy Daniels payment a la Clinton doesn't hurt his numbers and in some quarters might actually help his numbers. But how do you with your polling background, assess these uncharted areas of criminal trials that we seem to be headed toward.

[09:40:05]

NEWHOUSE: Michael, voters move based on information they've either not heard previously, or when they find something that's surprising or contrary to what their perception of -- you know, of a candidate. In this case, I don't think Trump voters were surprised at all that in a New York City court of law, a judge decided to fine the president. I mean, if asked, they would inevitably say, the case was stacked against him. And of course, they'd find him guilty.

There -- it's a matter of expectations. These Republican voters believe that Democrats are pressing these cases against President Trump because they believe that Trump would beat Biden. They don't -- they don't buy any of the arguments whether he's convicted or not convicted. It's not going to make much difference in their vote.

Now that's not -- not the case necessarily with independents and swing voters. But for Republican primary voters, it didn't make a damn bit of difference.

SMERCONISH: It's expensive for him to fend off all these challenges. I mean, you know, to pay for all the advertising. I think that there's a lurking financial issue here that might be the most significant about the prosecutions.

Neil, nice to have you here. Thank you for that. I appreciate it.

NEWHOUSE: Thanks. Michael.

SMERCONISH: Social media reaction. Catherine, what do we have?

I have been a vocal anti-Trump R. But after yesterday, I have no choice but to hope Trump prevails, then takes a flamethrower to the abusive administrative state created by -- well, I mean, that's what -- that's what Neil Newhouse was just saying.

And by the way, that's why I made the observation earlier in the program that for there to be a finding against Trump is one thing in the civil fraud case, but of $355 million on top of the E. Jean Carroll case and now facing trial at the hands of Alvin Bragg, who campaigned much like Letitia James did, saying that he'd go after Trump. She was going to go after Trump.

The perception -- you know, don't fire at me for saying this. I'm telling you the perception in half the country is that it's all political. And that's why I raised the specter of perhaps a conviction in the Stormy Daniels case actually benefiting Trump if there were to be such a conviction. But who the hell knows? I mean, I can't look around corners in this election. I've given up trying to predict it.

Still to come, more of your best and worst social media comments. And don't forget to vote on today's poll question at Smerconish.com. Who is more likely not to be their party's nominee, Trump or Biden? Go vote.

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[09:46:59]

SMERCONISH: More social media reaction. This from the world of X.

When you routinely inflate your net worth, 2 billion in just one year, it's called fraud. There's no need for discussion here. You or I would probably be in prison. And they'd be no one donating to help us (ph) with our fines.

I'm not defending him inflating his net worth. I am questioning whether it warrants a $355 million fine. And I think lots of this takes place in the real estate industry where the sophisticated lenders know enough not to rely on what a developer says his or her building is worth. That's the observation that I'm making.

And if you can name for me a similar case where this -- there's been a prosecution based on these type of facts I'd like to know, because I went looking for it and I don't see anything like it.

More social media. What else has come in during the course of the program so far?

Boy, oh boy, every Saturday you are pushing for a third-party candidate. I learned in '16 all it does is Trump.

Pip, I didn't -- I didn't push for a third-party candidate yet today. I'll do that now if you'd like me to. I simply made the observation when talking about the what-if scenarios, if it's really not Trump, if it's really not Biden, when all is said and done next November. Let us not forget that there's a lot of third-party activity going on out there.

Manchin says it's not going to be him. No labels, we still don't know what, if anything, they're going to do. We should know in a period of about three weeks.

And yes, I have my eye on the third-party candidacies, and I'll tell you why. Because overwhelmingly Americans are saying we'd rather not have either of these guys. Should I ignore that? No. Next.

Smerconish's producer selects only comments that play into Smerconish's talking points against Biden. Never the cogent comments defending Biden. This show is as object -- I guess, that should be objective -- as the old Russian publication Pravda. Well, Foxnewslies, I think we've just proven you absolutely incorrect. I would never have read yours if that were the case. Little reminder for first-time viewers. I don't see any of the social media in advance. I don't want to see him. I'd rather react in real time.

And no, they're not tailor-made to fit any kind of an objective. If anything, they're tailor-made to kind of me piss me off.

It's funny. I got two notes, two comments, two criticisms in the last week about my handling of social media that stand out. One of them was from a close friend of mine who said, you know how you can enhance that part of the program? Bring in a blood pressure cuff and let us watch as your blood pressure rises as you react to them. And the second note was from my mother who said, when you get all those nasty emails, you should smile more.

OK. One more. I've got time for it.

Hey Michael, what about Marcia Clark and Christopher Darden? They had a relationship and no problem during the O.J. Simpson case.

Yes, I got to think about that, Denise. One didn't hire the other and then have a stake in the outcome. I mean, if you buy into it and I'm not convinced that this is grounds for Fani Willis and or Nathan Wade to get their walking papers, but to buy into the argument there's at least an appearance of impropriety.

[09:50:08]

That I fully see. And the argument is that with him being the recipient of the legal fees, she's now a beneficiary because they travel, and they eat and they spend time with one another. Couldn't take my eyes off it.

All right. The final results of the poll question at Smerconish.com. Have you voted yet? If not, please go vote right now. Who is more likely not to be their party's nominee, Trump, or Biden?

Remember, while you're there, subscribe to the daily newsletter. You will get exclusive editorial cartoons from the legends. This one by Rob Rogers. Check it out for Valentine's Day.

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[09:55:15]

SMERCONISH: So, there's the results so far of today's poll question. Wow, a lot of voting, 32,334. Who is more likely not to be their party's nominee, Trump or Biden? Fifty-eight percent say Donald Trump more likely than Biden not to be his party's nominee in November.

Social media reaction. What do we have? Time for one, I think, if we can get it up there quickly.

You act as if Joe Biden has not been a spectacularly successful president. Why do you treat him as a know-nothing, do-nothing, has- been?

Fred Wanger, to the contrary, I absolutely do not. As matter of fact, Stuart Stevens, who is a Republican -- what do I want to say? Pollster, ad man. I mean, he's a guy relied on by any number of Republican presidential candidates. And a really smart guy.

He wrote a piece that I talked about on radio yesterday, which advise Democrats, just say it. Joe Biden has been a great president. And then he laid out the Biden record. What ails Biden can't be fixed. We all know what it is. It catches up for all of us sooner or later. Thanks for watching.

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