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Smerconish

Who Will Over Black Voters In November? Will Trump's Guilty Verdict Have Any Political Impact?; Trump's Best Shot At An Appeal. Aired 9-10a ET

Aired June 01, 2024 - 09:00   ET

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

[09:00:28]

UNIDENTIFIED MALE: This is CNN, the world's news network.

MICHAEL SMERCONISH, CNN ANCHOR: The next verdict will come on Election Day. I'm Michael Smerconish in Philadelphia. Donald Trump is the first former U.S. president to be a convicted felon. But will the verdict help or hurt his 2024 campaign? Non-white voters may have the answer. Here's a part of what some of the callers on the popular morning radio program the "Breakfast Club" had to say after the verdict.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: I feel like Trump got did dirty and I don't trust the system at all after you've been railroaded by the system, and you see that when you walk in the courtroom, if they you to be guilty, you're going to be guilty. How can anybody black vote for Biden? At least Trump real.

UNIDENTIFIED MALE: I'd rather have a president right, who's going to be honest and show me he's an a-hole, than a president who's going to lie to me to try to gas me up to get my vote.

(END VIDEO CLIP)

SMERCONISH: "Breakfast Club" host Charlamagne tha God is going to join me in just a moment.

In the most recent poll of battleground states, which included third party candidates, Biden had only 49 percent support of registered black voters. And in a two way race, Biden had 63 percent support with Trump getting 23. If these numbers were to hold up by Election Day, Trump would have the highest level of black support for any Republican presidential candidate in the last 60 years. From a national scale, a Pew Research poll finds Trump polling 18 percent of support from black voters, which is a dramatic shift from 2020 when Trump received only 8 percent of the black vote against Biden, that itself was a slight uptick from the 6 percent he received against Hillary Clinton in 2016.

Similarly, a Washington Post/Ipsos poll found a 12 percent drop in the number of black Americans saying they are certain they will vote in this election cycle. The drop in voter turnout is even sharper among young black voters who mostly disapprove of Biden's job performance. To mobilize support among this critical voting bloc, Biden and Vice President Kamala Harris held a rally in Philadelphia this week.

(BEGIN VIDEO CLIP)

JOE BIDEN, PRESIDENT OF THE UNITED STATES: What do you think would happened when black Americans are storming the Capitol? I don't think he'd be talking about pardons. It's the same guy who wants to tear gas you as you peacefully protested George Floyd's murder. The same guy who still calls the Central Park Five guilty even though they're exonerated. He's that landlord who denies housing applications because of the color of your skin.

He's that guy who won't say black lives matter and invokes neo-Nazi third right terms.

(END VIDEO CLIP)

SMERCONISH: My next guest has interviewed both Vice President Kamala Harris and President Joe Biden back in 2020 when he gave this controversial answer.

(BEGIN VIDEO CLIP)

BIDEN: If you have a problem figuring out whether you're for me or Trump, and you ain't black.

UNIDENTIFIED MALE: It don't have nothing to do with Trump. It has to do with the fact I want something for my community.

(END VIDEO CLIP)

SMERCONISH: Joining me now is Charlamagne tha God, the host of the popular I Heart Radio breakfast program called the "Breakfast Club," which reaches nearly 6 million listeners a month. As you can see, he's also the author of a new book called "Get Honest Or Die Lying, Why Small Talk Sucks."

Charlemagne, I love the book. We're going to talk about the book. You write small talk is killing us as a society. So there won't be small talk here. When I recently wondered aloud if Trump has the sympathy of some black men, because historically, many of them have had their own legal entanglements.

Somebody close to me said you can't say that as a white guy, you're stereotyping. Maybe you'll be perceived as racist. But some of your callers are saying the same thing. Do you agree that's what accounts for some of his black support?

CHARLAMAGNE THE GOD, HOST, "BREAKFAST CLUB" POWER 105.1 FM: Well, I don't agree. You know, black people are not monolithic. So I can't speak for all black people. But personally, I don't agree Donald Trump is not a political prisoner. He's not someone who, you know, died unjustly at the hands of the police.

He's a privilege former president who broke the law, and he got held accountable for it. And that's the way it should be. Damn shame, he can still, you know, run for president, you know, after being convicted on all those counts. But clearly America has zero protection, you know, for people, like Donald Trump.

SMERCONISH: OK, in the book, you say if you're black, it's almost assured that you've suffered some sort of trauma in your life. The justice system is certainly the source of a lot of that trauma but you're not seeing any parallel between the decline of support for Biden among people of color, the rise of support for Trump and Trump's legal issues.

[09:05:18]

CHARLAMAGNE THE GOD: No, not at all. I don't I think -- I think that, you know --

SMERCONISH: Then what account for -- then what accounts for it?

CHARLAMAGNE THE GOD: I mean, I don't even know if there's really arrived. I think some of those polls might be a little bit overstated. I mean, we're going to have to see come November, but when I looked at those numbers, and I see people say, you know, 22 percent of all black people are going to vote, you know, for Donald Trump, I don't necessarily believe that. I don't know if -- I don't know if -- I don't know if I believe those numbers to be true. I think there might be a slight uptick, but I can't see 22 percent of, you know, black people going out to vote for Donald Trump come November.

I could be wrong, but I don't personally see it.

SMERCONISH: In the book, you talk about your fondness. We have this in common we both love the movie "Bulworth," "Warren Beatty and Bulworth."

CHARLAMAGNE THE GOD: Yes.

SMERCONISH: And Warren Beatty doesn't feel obligated to do safe speak. I found interesting that you talk about private conversations with Secretary Clinton, private conversations with Kamala Harris. And then like when the mic gets hot, it's a different persona. They are not Bulworth. Trump is Bulworth. Talk to me about that.

CHARLAMAGNE THE GOD: Yes, I think that, you know, one thing that Donald Trump did that I believe is a good thing is, you know, he killed the language of politics, like the language of politics is dead. So you know, if you had these politicians who actually sat down, you know, with everyday working class people and had conversations with everyday working class people, I mean, that's what I get to do every morning on the Breakfast Club. That's what I get to do when I'm out doing my, you know, community work, whether it's in South Carolina, whether it's in New Jersey, whether it's in New York, when you get to actually talk to people and see what's on people's minds, you know, when you get in front of those microphones, you'll always have that in your head, you'll always have, you know, in your mind what you know, people are actually saying. When you're sitting around with your team, and your team is coming at you with all these notes, you're like, well, I don't -- you can personally say I don't know if that's how people feel because I saw, you know, a young woman in Florida. And I'm speaking of experience, I just saw a young woman in Florida, her name was Kim (ph) when I was at Coral Gables for a book sign and she came up to me and you know, she said to me that, you know, Biden is going to have to earn our vote this year, because she's upset that Biden didn't fight hard enough for voting rights, and that Biden didn't fight, you know, hard enough to increase the federal minimum wage.

These are words that are coming out of their mouth. When I was speaking back in January, you know, somebody asked me at Fox, actually, if the border was going to be an issue in November, the reason I said yes was because of the conversations that I've been having with, you know, activists in Chicago with, you know, people in neighborhoods in New York. So my rhetoric comes from the people. And that's what happened in the movie Bulworth, his rhetoric was coming from the people, these elected officials, you know, need to sit down and have more conversations with individuals. I see them, you know, going around, and they're having these, you know, rallies where they're talking to people they should change those to town halls, and actually talk with people, actually think they should listen, you know, more than they're talking right now.

SMERCONISH: Charlemagne, one of the highest compliments paid to me was by Bill Maher, when he said to me, you don't have a team. And as I was reading your book, I was thinking, Charlamagne, you don't have a team either. And it came to light in that view interview where it's like, they were putting pressure on you, it was almost expected of you, hey, wait a minute, maybe because you're a person of color, maybe because of the interview that you had done previously with then vice president by like, why aren't you on board and endorsing him? Address that issue.

CHARLAMAGNE THE GOD: Yes, because I'm all about my interest, you know? And I'm all about, you know -- I'm all about boarding interest and I'm all about a issues person, I'm not an individual person. I'm not a party person. And that, you know, I think that media, we have to find a way, you know, to let folks know, you know, what Trump and his regime are planning, but also think, you know, sitting on air all day and sitting on social media all day talking about, you know, how bad Trump is, isn't effective, you know, because the people who are supporting Trump don't care about any of that. They don't care that he was convicted, they don't care that you know, he may have used the N word, they don't care about any of his racism, sexism, they are all in on him, and nothing is going to change that.

So the media, especially on the left, should talk more about the good things the Biden administration has done when people ask questions. And you know, if you're -- if they're being fair on the right, you know, they should do that as well. They shouldn't sit around and talk about, you know, how bad Biden is. You know, they should talk about the things that Biden has done well. And they should talk about the things that, you know, Trump isn't doing well.

That way it would look like everybody is being, you know, fair and balanced. But right now, you can just turn on anyone network and know what team they're going to be representing. And that I don't certainly think that's good for the American people. SMERCONISH: Totally agree. My poll question today on my website at smerconish.com asks if this his verdict is going to change the outcome of the election. What's your short answer to that?

[09:10:06]

CHARLAMAGNE THE GOD: Yes, it definitely will have an impact because I believe 2024 is going to come down to the battle of the basis. So those diehard, you know, conservative and liberal voters who come out and vote no matter what. So it's really which candidate can energize their base the most. In a situation like this, you know, it does energize Trump's base. You know, just yesterday in New York City, I'm going down Fifth Avenue, they were in the streets protesting waving F Biden flags and stopping traffic, his base reacts to things, you know, the way the left the left shirt, like you know, when you see Roe v. Wade getting overturned, the voting rights being gutted, when those civil liberties are being taken away folks up in the streets, protesting like that.

So I see, you know, Trump's base more energized right now than I do, you know, Biden's base. I see Biden's base upset with him over a number of things. And I think in November, it's going to come down to a battle of those bases. So yes, I do think a situation like this gives them a something, something to fight for.

SMERCONISH: Charlemagne, my favorite paragraph from the book, which I told you, I read and really enjoyed. I wouldn't say it if I didn't mean it. Here it is. We'd meet at an appointed time, and then just plot something to get into. Let's ride our bikes to the BP gas station in conifer hall, and get some honey buns someone might say, or maybe my daddy told me, there are some old tombstones in the woods over by old Whitesville road. You want kids to get outside. Speak to that in 30 seconds.

CHARLAMAGNE THE GOD: Yes, I'm talking to a time long, long, long ago, before social media and before cell phones and you actually had to, you know, go outside, especially if you were in a rural area like I was in Moncks Corner, South Carolina. And you know, I believe we all have to get reconnected with nature. If you're a person like me, who's an advocate of mental health and you know, emotional well-being, man, go outside and breathe some fresh air. Take your shoes off, take your socks off, go do some grounding, you know. Go put your hands on a tree.

Go hug a tree. Put your forehead against a tree, say a prayer to the sky, go into some water, look up to the sun. Pray to God. That's how you get reconnected and you stay grounded in this crazy as society and trust me, we all need it.

SMERCONISH: I agree. Thank you, Charlamagne. Appreciate it.

CHARLAMAGNE THE GOD: Thank you, Michael.

SMERCONISH: Want to know what you're thinking? Go to my website at smerconish.com answer the poll question, will Trump's conviction change the outcome of the election? What are your thoughts? Hit me up on social media? I'll read some throughout the course of the program.

Catherine (ph) from the world of X, what do we have? Because black Americans are tired of being pander to for nothing but their vote as Biden brings in millions of illegals who are showered with food, shelter and plane tickets, Butterscotch says. So look, Charlemagne disagreed, you know he was not accepting the thesis that I offered. Trump's numbers have benefited from the indictments, whether they benefit from the conviction remains to be seen going to talk about that in just a moment. But at the same time, his numbers have benefited in particular among voters of color, is it because of the legal entanglements.

It would seem to me that there is a connection between the two. But I'm a suburban white guy, so I'm surrendering the Florida Charlamagne.

Still to come why is Elon Musk -- this is amazing. Why is Elon Musk tweeting out the latest opinion piece by our friend and my guest, Elie Honig? Here's a hint it's called prosecutors got Trump, but they contorted the law and Elie is here to discuss. Also will the fact that Donald Trump is now a convicted felon be a game changer for the election minded have no impact at all. Who better to ask than these two wise political legends James Carville and David Axelrod are next.

(COMMERCIAL BREAK)

[09:18:14]

SMERCONISH: Well, the fact that Donald Trump is now a convicted felon be a game changer for the 2024 election or minded have no impact at all. Although the verdict brought joy to those who oppose him it immediately energized his base. In the first 24 hours his campaign says that they raised nearly $53 million, a third of that from new donors. On the other hand, we now have the first post-verdict poll. It was conducted by Reuters in the two days after Trump's conviction.

It says that 10 percent of Republican registered voters say they are now less likely to vote for Trump 35 percent said they were more likely to support Trump 56 percent said it would have no impact in a race that has long been within the margin of error that 10 percent of doubt looms large. Yet these polls of likely support actually don't show many Trump voters switching their vote to Biden.

As FiveThirtyEight Nathaniel Rakich recently put it, on average Trump loses six points of support after a conviction is taken into account. But Biden gains only one point, someone else or undecided gains five points. Joining me now the Ragin Cajun James Carville, the legendary Democratic strategist who ran Bill Clinton's 1992 winning campaign, he's now the co-host of the podcast Politics War Room," and CNN senior political commentator David Axelrod, former senior adviser to President Obama, host of CNN X-Files podcast. Two of the smartest observers in the nation. A comes before C.

So Ax, I asked you this. I don't think anybody can predict how it plays out. But when do you think we will know the impact? When does the dust settle so that we can make conclusions? DAVID AXELROD, CNN SENIOR POLITICAL COMMENTATOR: I don't know if it ever completely settles, Michael, and you know, one thing I was -- as I was listening to you one thing that struck me as we're sitting here in June. There is an eternity between now and November. And things are going to happen that will shape this race beyond this. So, I really don't know what material impact it's going to have.

[09:20:19]

I think one of the interesting questions is what impact does it have on Trump? Because if Trump becomes more self-obsessed, more focused on his own grievances, and troubles, and less on addressing the problems of people, it's an opportunity for the President to do the opposite. To talk about the things that are actually concerning to people in their lives. What he's doing about it, what Trump would do about it, and create the kind of contrast on tangible real life issues that I think will make the difference for him.

SMERCONISH: James, to that point, I thought that Trump was meandering and unfocused yesterday and had a golden opportunity in the aftermath of that verdict to deliver a message. What did you make of how he handled it? What do you think is going to be the impact?

JAMES CARVILLE, DEMOCRATIC STRATEGIST/CO-HOST POLITICS WAR ROOM: What I think is this is right after someone dies, everybody comes over and brings you casseroles and sits with you and some sits share, but they have weight. And you know, four or five days, everybody has to pass it and everybody goes home. And you pair to still get, all right? And I think Trump right now is a lot of who hide in the bases rally. And he write, he's disjointed.

He's all emotional. I don't think that guys slept 20 hours in the last 20 days. But I think the effect of this if it's relevant at all will be felt later on. Because we got all kinds of events coming up the sentencing report, the sentencing, the appeal, of all the things that happen, just in a normal flow of a criminal case, which I profoundly agree with David, that this is a real opportunity for President Biden to start talking about some of the things that he wants to do in his second term, and try to frame this election around the, what's he could do to help people, young people, other people around the country, he's got a golden opportunity here, and he's going to have the whole terrain to himself. Trump is fighting this, and he's really going to take advantage of it.

SMERCONISH: David Axelrod, he's also going to be delivering President Biden whatever he has to say, going forward in the context now of the Hunter Biden trial, which is about to get underway. What do you think President Biden will do?

AXELROD: Well, look, you mean, in terms of addressing the Trump case?

SMERCONISH: Yes, yes.

AXELROD: Or Hunter's case?

AXELROD: Look, well, I -- SMERCONISH: Or both. Short -- both.

AXELROD: -- I think he'll do -- I think he was pretty muted in his response. And I think that was appropriate. He addressed it more as president than candidate about what, you know, it meant for the country. And then he moved on. As James and I are both saying, I hope what he says is, the message should be I'm fighting for you and your future.

And this is how -- this is what he would do. I'm fighting for you. He's fighting for himself. That's what how he should frame this. I don't think he should dwell on this one.

One point on sentencing, Michael, you know, sentencing is scheduled for July 11. One of the reasons that Trump is raising all this money is he's raised the specter of being thrown in jail and being a political prisoner, and so on. My guess is, and I don't know, I'm not a lawyer you are, I think it's highly unlikely that he's going to get sentenced to prison, in this conviction. And if the sentence is something less than that, if it's probation, for example, I suspect that his argument will lose some of its efficacy, even with the bass kind of takes some of the wind out of the thing. So I -- you know, as we both said, I just don't know how this is all going to play out.

But I do think the thing to watch is how the two candidates deal with it. Does Trump continue to fulminate in the kind of irrational way he did yesterday? He won't be a very good candidate, if that's the case. And will President Biden sees it as an opportunity to strike a contrast between a guy who's fighting for people and a guy who's fighting for himself.

SMERCONISH: James, on your watch in the 90s. I think one of the takeaways was Americans are not going to vote based on sex. Is the perception of this Trump case that it's business records or that it was sex? And does it matter?

CARVILLE: Well, I think it certainly, legally it was about the business records. Trump's stupidly said in open arguments that he never had sex with Stormy Daniels and some of the commentary on this is just downright awful. One person talked about the $35 donation that the judge made to Democrats without telling his readers that said judge asked the supervisory court if he should proceed and they say yes.

[09:25:11]

So, there's a lot of stuff to be flushed out here. And as you know, Mike, polish the radio show fairly frequently. And I believe I'm correct you're a former prosecutor, and you know, probably know more about juries than David not put together times a factor of 10. My experience has always been that I trust juries. I think that diligent, I think they pay attention. And if they in a vast majority of the times, they get it right. And they're smarter than these high end legal commentators. That's my own personal view.

SMERCONISH: You're good for my demographics. Please keep listening. My work was on the civil side. Ax, let me ask you this. The other guy there famously said it's the economy stupid. In the end --

AXELROD: Yes.

SMERCONISH: -- is the economy going to trump? I'm going to ask you, and then I'm going to ask Carville. In the end, is all of this secondary to, you know, the price of eggs and milk?

AXELROD: I kind of think yes, because I think the people who are hanging out there who are going to decide this election are people who are concerned about their costs. I keep saying, you know, I feel deeply about these democracy issues and the rule of law. But if you're sitting around the kitchen table, talking about democracy and the rule of law, chances are you're not worried about the cost of the food on your table. If you're worried about the cost of the food on your table, or your rent, or gas prices or the mortgage, more likely, you're fretting about that. And I think the candidate who persuades people that they are working diligently on their behalf on those issues, and that fight is ongoing, is the one who has the best chance to win over those voters who are hanging out.

SMERCONISH: James, what are you thinking?

CARVILLE: Well, I'm thinking again, that the President has a golden opportunity. He's almost got a whole plane theater himself to talk about what he wants to do. And we're not doing very well with young voters, because young voters are not particularly comfortable in this economy, not seeing themselves and being able to buy a house or educate their children. I think the president should come out for a $15 increase in minimum wage immediately. I think he should say he's going to raise taxes on people making over $4,000 and start a first time homebuyer's relief fund.

I think he's got to connect with people and understand that this economy is working for some people, but not working very well for others and make the people that it's working for pay a little bit more and try to help people it's not working for that. And I think an opportunity to do all of this because Trump is so we say pin down for the foreseeable future.

SMERCONISH: You couldn't make it up, right? Gentlemen, I mean, not if we if we wrote the screenplay, Hollywood would be laughing at us. I appreciate both of you. Thank you so much for being here. James Carville, David Axelrod.

AXELROD: Thanks, Michael.

CARVILLE: Thank you, Michael.

SMERCONISH: What are you saying via social media, Catherine from the world of x, who better to have than those two, by the way, right? Who better to have than the insight of those two who have been there and done it? I think that's what I would most want to say. Rakesh, the conviction has strengthened the conviction of the base and independence seem to be bothered as well. You're setting me up beautifully for the next conversation on this program because Elie Honig is about to join me. And I just I have the utmost respect for Elie, I've watched all of his commentary here on CNN, he's the breakout star of all of the coverage of this trial. Why? Because he calls balls and strikes. And everybody likes to try and read into his motivation. I don't think he has any motivation, other than to just tell it like it is. But to your point, I think that the angst over the outcome is shared by more than just the base. I feel some of it. And I'll explain that when Elie is my guest.

I want to remind you go to my website at smerconish.com. Will Trump's conviction change the outcome of the election? Go vote. Sign up for the free daily newsletter while you are there.

Up ahead, Judge Juan Marshawn presided over the first ever criminal trial of a former U.S. president, but now he faces what might be an even trickier task, deciding what punishment to impose, as I was just discussing with my guests, four days before the GOP convention, Ellie is here. His latest piece is setting Twitter on fire. Prosecutors got Trump but they contorted the law. Sign up for the free daily newsletter. You'll get great cartoons including Scott Stantis. Yes, he draws for the Dallas Morning News, the Chicago Tribune and smerconish.com. Does that not sum up this week?

(COMMERCIAL BREAK)

[09:34:33]

SMERCONISH: Trump's guilty verdict in the hush money case may have answered one big question but it raises new ones. On sentencing day July 11, will Judge Juan Merchan sentence him to any jail time? And does Trump have a shot at an appeal?

Part of the latter question may rest on this document which we didn't get to see until after the case wrapped up. It's the verdict slip that -- which was filled out by the foreperson. This is the result of the trial. Here to discuss is CNN senior legal analyst and former federal prosecutor, Elie Honig.

[09:35:02]

He wrote this piece for "New York" magazine's "Intelligencer" titled "Prosecutors Got Trump But They Contorted the Law." It has now set the Twitter verse on fire. Elie, I want to go into the weeds here from the jury instructions. I'm going to put this up on the screen. I'll read it aloud.

In determining whether the defendant conspired to promote or prevent the election of any person to a public office by unlawful means, you may consider the following, violations of the Federal Election Campaign Act, otherwise known as FECA, the falsification of other business records, or violation of tax laws.

Now, I'm putting on the screen one portion of the verdict slip so that people can see it was a binary choice on each of the 34 counts. And here's my question, based on the verdict slip, Trump can truthfully say he doesn't know for what he was convicted. Do you agree? ELIE HONIG, CNN SENIOR LEGAL ANALYST/FORMER FEDERAL PROSECUTOR: I do agree. And I think we all have that issue. Now, that verdict slip that we just looked at is deceptively simple in its layout. It's a binary choice, guilty, not guilty, yes, no.

But in fact, the charges here are much more complicated. So, think of them like if it was a triple decker sandwich. There's three actual layers to each of the 34 four counts here.

The first layer is a New York state violation of falsifying business records, which is a misdemeanor. The middle layer is while they falsified business records in order to violate New York election law which says, you can't try to influence an election by -- quote -- "unlawful means." Well, what are those unlawful means? That brings us to the third layer, which is the sort of three-part menu that you just showed us, and the judge told the jury the prosecutor's argument was, well, it could be one, both, or all three, or maybe some combination of federal campaign finance law, falsifying other business records, which doesn't really make much sense to me, or some sort of tax violation.

So, we don't know which of those three options the jury voted to convict on. And the judge said, you don't have to be unanimous as long as you agree it was one of those three. So, there's a lot of uncertainty in what the jury actually decided.

SMERCONISH: OK. In the last couple of days privately by text I was saying to you, hey, Elie, have you seen the verdict slip? Can you flip it to me?

Because I wanted to see what level of detail they were going to have to provide. You're the expert when it comes to matters of prosecution. Do you agree with me that this is a legitimate appellate issue for Trump?

He can put it in the way that I put it. I don't know for what I was convicted.

HONIG: There are two appellate issues here. The first one is what you said, look, a basic fundamental principle of our criminal law process, of our constitution is a defendant is entitled to notice in advance of trial with specificity what he's being charged as for, what he's being tried for. That's why we have indictments.

Now, the indictment in this case does not specify what the underlying -- quote -- unquote -- "unlawful means" are. And in fact, and I found this to be shocking, frankly, the judge did not make the prosecutors commit to any of those unlawful means until we were just about into closing arguments. So, that's going to be appeal issue number one. I was never put on specific notice of what I was being tried for.

Appeal argument number two is going to be this, one of the bases for conviction here, one of the unlawful means is a violation of the Federal Election and Campaign Act. Do you know how many times, Michael, we have ever had in the history of this country, a state or county level prosecutor charged either as a charge or a sub-component or an unlawful means or any part of a charge a violation of federal campaign law? The answer was zero.

SMERCONISH: Probably never. Yes.

HONIG: So, this is the first -- right, exactly. This is the first time in American history that's been done. And the appeals argument will be when you have a federal regulatory structure around elections, that's for the feds to violate. That's not first state or in this case, county. Alvin Bragg is a county level prosecutor to enforce because that would lead to mayhem and that would create problems for federalism, for the notion that federal law has to, no pun intended, trump state and local law.

SMERCONISH: James Carville, the Ragin' Cajun, was just here. We were talking about the political aspects. David Axelrod as well. But James made reference to Judge Merchan. Judge Merchan has got a big decision coming, right, whether Trump is going to go to jail. Speak to that issue.

HONIG: So, number one, regarding Mr. Carville's comments -- I respect Mr. Carville enormously. He, I think, was referencing my piece where I've talked about the fact that Judge Merchan made a very small $35.00 donation back in 2022 to an organization that part of its goal earmarked the funds were to resist Donald Trump in his radical right- wing legacy. That is a major problem.

Mr. Carville is right. There was an ethics committee that looked at this and said, you don't have to recuse. Now, but there's a difference between must and should. And I would pose this question to Mr. Carville or anyone along these lines, would you be OK if in another one of the Trump cases, if the judge had donated a very small amount of money, $35.00 to MAGA 2020 Trump forever resist Joe Biden? I don't think so. I don't think James Carville would be OK with that. And I think that's the principle here.

[09:40:00]

Now, as to your question, Judge Merchan is going to have a very difficult decision. The sentence is entirely up to him. And, Michael, if we look at a universe of falsification cases in New York state roughly 70 to 90 percent of those cases result in non-prison sentences. So, you're talking about probation and restitution and fines and that kind of thing.

But prosecutors may well make an argument and I see it that Donald Trump is not the classic falsification case, that there are aspects of this case that make it a much more serious case. The fact that he has violated the contempt order, the fact that his conduct, according to prosecutors and the jury, impacted an election. So, I think this is going to be a razor's edge 50/50 call about whether Judge Merchan sentences him to some prison time.

SMERCONISH: OK. I'm shocked to hear you say that. I thought you were going to toe the line and say, it's highly unlikely. But again, you surprise and I appreciate that. I loved the independent thinking.

Hey, put the social media up while Elie is still here. I may need to lean on him for the response. What do we have?

The form is just the jury vote. It does not have to have all the details and testimony. Those are in the court records and transcript. Like it or not that is the law.

Mike, I totally disagree. It puts Trump at a disadvantage. Trump does not know what's at the Federal Election Campaign Act. Was it additional manipulation of business records? Was it some amorphous tax violation? Elie, what's your thought?

HONIG: Yes, I agree with you, Michael. I think the caller here or the viewer makes a good point, which is the jury form -- the jury doesn't write an essay. Here are the reasons for her verdict. You just check a box.

But I've done cases like this where there are subcomponents to the charge. I used to do racketeering cases. And you have to prove a certain number of racketeering acts. And we would ask the jury in the form, which of these racketeering acts do you find proven unanimously or not, A, so that the jury will be able to tell us specifically how they made their finding, B, so the defendant has noticed, and C, so we're covered on appeal? And now this is going to be an appeal issue that frankly prosecutors could have avoided if they just said, hey, jury, tell us the specific one of those three menu options which you chose.

SMERCONISH: Well said. Elie Honig, thank you. Appreciate you.

HONIG: Thanks, Michael. All right.

SMERCONISH: Still to come, more of your best and worst social media comments. Don't forget vote. I can't wait to see the outcome. I have no idea what you're saying on this.

Will Trump's conviction change the outcome of the election? I'm not even saying which way. Like maybe you think, yes, now he's going to win. Or, yes, now he certainly loses. While you're there, sign up for my free and worthy daily newsletter. You're going to get incredible cartoonists like Steve Breen. Love that. Do you remember "Tommy Boy"?

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[09:47:13]

SMERCONISH: So, here's some of what has come in thus far during the course of the program.

Trump isn't gaining any Black votes. It's all media hype. A convicted felon being your party's candidate will be damaging to the electoral process and integrity. It'll erode the trust of our institutions at diminish our global reputation. You should ask Trump to drop out.

Minnesotavoice, then all the polls are wrong. Like, I don't -- I don't cite and CNN wouldn't let me cite, but sometimes we're negotiating, you know, behind the scenes like, hey, can I use this poll? Nope. You know, CNN doesn't recognize that poll. If I cite the poll, it means that it has passed an internal review here. And the polls are telling the same story. So, they'd all have to be wrong. Now, does that mean that's the way it's going to end? No, polls are a snapshot in time.

And what do they tell us? Up until the verdict that Trump was leading in the national surveys, kind of meaningless but interesting, and most importantly in the battleground states. And among those groups, integral to Biden's past election were voters of color. And his numbers are way the heck down with them.

So that's what the numbers tell us. Follow the data. Here's another one real quick. What do we got?

You fail to mention that both the defense and prosecution agreed to the jury instructions. Stop trying to defend Trump. Also, mentioning the judge's alleged bias -- this is bullshit.

Did I mention the judge's alleged bias? You did not hear that come from me. Instead, I'm investing the time to analyze the verdict slip. And in looking at the verdict slip, I say to myself, OK. So, in the end for what was he convicted?

Now, you can say, oh, for falsifying business records, except that is a misdemeanor for which the statute of limitations has run. So, it' got to be something else. What's the something else?

Oh, it can be one of three different things. OK I'd like to know which of the three it was. Like take Trump's name out of the equation and put in anybody else's name. How about a relative of yours?

Don't you think an individual who has been convicted and now faces jail time has a right to know, well, what was the offense? And this whole business of a lack of unanimity, what if they were 4, 4, 4 on the three different things that it could have been? No. It doesn't -- it doesn't sit well with me.

Do I have time for one more? I think that I do. What do we got?

No, but what will impact this election is Trump's VP choice. Never in modern history will a VP pick impact an election.

So, Troy is answering the poll question and saying what really matters now is who will be the VP for each of them. Every four years, we like hype the VP selection. I agree with you. This year, I think, it does matter.

Still to come, the final results of today's poll question at Smerconish.com. Will Trump's conviction change the outcome, either way, for the election?

[09:50:00]

Go vote, subscribe to the newsletter. Here's another one that was drawn for the newsletter this week, Rob Rogers. Come on, hysterical.

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SMERCONISH: OK. There's the result so far, 32,495. Will Trump's conviction change the outcome of the election? Fifty-six percent say yes. I presume that the 56 percent are saying, yes, it's going to change the outcome of the election, and it's going to cause, you know, Trump to lose where perhaps otherwise Trump could have won.

[09:55:10]

I'm reading into it. I imagine that's what you think. And it occurred to me as I was speaking to David Axelrod, and James Carville, and Elie Honig on this issue -- by the way, what a carpool, Charlamagne tha God, Ax, the Ragin' Cajun, and Honig. It's like a buddy movie waiting to happen.

But I was thinking, what if the sentence is jail four days before the Republican National Convention? Then I'd be in the category of saying, yes, it will change the outcome of the election. It will cause Donald Trump to get elected.

I don't think it's just the base that is fired up about this. I think there are a lot of people out there who don't like them and say, you know what? This was not the case for which he should be going away, if he's going away.

All right. Thanks for watching. I'm off next week. See you soon.

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