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Smerconish

Claims Of Transgender Player Rock College Tournament; Biden Proposes Expanding Medicare, Medicaid For Weight-Loss Drugs; Rep. Brad Wenstrup, (R-OH), Is Interviewed About Obesity, Weight-Loss Drugs. Putin Threatens To Hit Ukraine Again With Nuclear-Capable Missile. Aired 9-10

Aired November 30, 2024 - 09:00   ET

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

VICTOR BLACKWELL, CNN ANCHOR: Lawnside, New Jersey, I see you. And if you see something or someone I should see, tell me. I'm on Instagram, TikTok X and Blue Sky. If you missed a conversation or story, check out CNN.com/Victor-Blackwell-First-Of-All to watch anytime. And you can listen to our show as a podcast wherever you get your podcast. Thanks for joining me today. I'll see you back here next Saturday at 8:00 a.m. Eastern. Smerconish is up next.

[09:00:33]

MICHAEL SMERCONISH, CNN ANCHOR: Controversy in the Mountain West. I'm Michael Smerconish in Philadelphia.

The San Jose State women's volleyball team is going to play the Colorado State Rams for the Mountain West Conference championship title today. And why is this specific college game of so many this weekend making headlines? Because women's volleyball has found itself at the center of the transgender athlete debate. You'll remember that last week I talked about Nancy Mace's introduction of a rule to limit bathroom access on Capitol Hill aimed at representative-elect Sarah McBride. That of course, followed the Trump campaign's effective use of a commercial claiming Kamala Harris is for they them while Donald Trump is for you.

The Harris campaign had no reply. I argued the response should have been clear and included that when it comes to athletics, the goal should be one of inclusion, but not at the expense of fairness. And that brings us to this week. San Jose is playing in the championship today because Boise State forfeited their match shortly after winning their game on Wednesday against Utah State. You can see Boise teammates celebrating their victory here.

That elation hours long and then came forfeit. Why? Over reports of a transgender player on the San Jose State team. That move sent San Jose State straight to the title game today.

It's unclear to me the level of dominance of the San Jose volleyball player seen here. Spiking the ball. We all, of course, remember the case of Lia Thomas, the trans swimmer at the University of Pennsylvania. In that case, according to Swimming World magazine, Thomas soared from the mid-500s ranking in men's competition to one of the top ranked swimmers in women's competition. I said then and still believe that's not fair.

The same questions about fairness and competitive balance seem to apply here, Boise State saying in a statement, quote, "The decision to not continue to play in the 2024 Mountain West Volleyball Championship tournament was not an easy one. They should not have to forego this opportunity while waiting for a more thoughtful and better system that serves all athletes. It's not the first time that a team has forfeited playing San Jose State. The team received a total of six forfeit victories throughout the season due to withdrawals from Mountain West opponents. Let's note these two things. No one made these teams forfeit.

They're removing themselves from a level of competition that they've worked all season towards. And second, the commissioner of their conference ruled that the player in question on San Jose State's team meets the current eligibility standards to compete.

But this controversy goes deeper than just the opposing teams. It goes within the Spartan team. One of the players, Brooke Slusser, filed a lawsuit to prevent her own teammate from competing in the conference tournament. She defended the move in the "New York Times," saying, quote, "We just don't think it's fair that a man is allowed to play. She called it a hard decision to file the lawsuit because she didn't want to," quote, "put my team through more than they're already going through."

On Monday, a federal judge in Denver ruled that the player was allowed to compete, and a federal appeals court upheld the decision the following day. President Trump stepped into the conversation on Fox News saying that he wants to ban transgender athletes from competing in women's sports. He used San Jose State as an example. He referenced this play from a few weeks ago in which a San Jose State player spiked the ball and was met with a dig from the San Diego State player. You can see her getting up and continuing to play.

(BEGIN VIDEO CLIP)

DONALD TRUMP, PRESIDENT-ELECT OF THE UNITED STATES: They had a volleyball match. Did you see that?

UNIDENTIFIED FEMALE: Yes.

TRUMP: Where a person that transitioned, OK. We have to be very careful because this can terminate your political career if you say it's slightly off. All right. But transitioned from man to female and was on a volleyball. And I saw the slam.

It was a slam. I never saw a ball hit so hard. Hit the girl on the head.

(END VIDEO CLIP)

SMERCONISH: The university disputed the president-elect's claim, saying this did not happen. According to a spokesperson, the ball hit her shot and she was uninjured and did not miss a play.

Issues of safety are completely relevant. The team's associate volleyball coach, who was currently suspended after filing a complaint against the alleged transgender athlete and player Brooke Slusser, highlighted their actual fears.

(BEGIN VIDEO CLIP)

MELISSA BATIE-SMOOSE, SJSU WOMEN'S VOLLEYBALL COACH: Safety is being taken away from women. Fair play is taken away from women. We need more and more people to do this and fight this fight, because women's sports as we know it right now will be forever changed.

[09:05:04]

BROOKE SLUSSER, SAN JOSE STATE VOLLEYBALL PLAYER: I mean, if we keep going at the rate we're going, what's to stop people just -- from not recruiting women anymore if they're allowed to have men on their teams, obviously that's the better option. They're going to be stronger, they're going to jump higher. So what's that to stop coaches from having a full team of men?

(END VIDEO CLIP)

SMERCONISH: It all culminates to a new battle in the transgender athlete debate that is playing out the volleyball court in real time. Joining me now is Sia Li'ili'i, captain of the University of Nevada Reno women's volleyball team. Her team made headlines last month when they became the fifth NCAA women's volleyball team to forfeit against San Jose State.

Sia, thank you so much for being here. So what was the thinking between yourself and your teammates in deciding you too would forfeit instead of competing?

SIA LI'ILI'I, INDEPENDENT WOMEN'S FORUM AMBASSADOR: It was a definitely hard decision that we had to not take lightly due to the fears and the - just the things that our teammates had brought up with fair play, opportunity, safety. So from there it was a conversation of, well, we're going to take a vote. Sixteen out of the 17 girls on our team decided that this is something they didn't want to participate in and they thought it was bigger than us, which it is. And a win and loss compares nothing to the future of women's sports.

SMERCONISH: We all, I think, followed the case of Leah Thomas, the trans swimmer who dominated at the University of Pennsylvania. You may have heard me say a moment ago that it's unclear to me the level of dominance of this particular player, but Sally Jenkins wrote in the Washington Post, something I'm going to read aloud and put on the screen for our viewers. She said, "she may not be that talented. An in-depth ESPN look at her performance suggests that her power is exaggerated. The lawsuit contends that she can spike a ball at 80 mph, but an ESPN camera calibration analysis found that was wholly unsupported.

Using software to examine five of her spikes from different games, they clocked estimated speeds between 51 and 64 miles per hour with an average speed of 50.6. She's not even in the top 150 in the NCAA in hitting percent."

How would you describe your assessment of the level of dominance of the player that this is all about?

LI'ILI'I: Honestly, I don't think that this should be centered on an individual. I think that all people should be able to live as they choose and be respected, but at the same time, we can't ignore biological differences that underlie women's sports. Men are bigger, faster and stronger than the average female. So, it's never have been about one individual athlete, always about the future of women's sports. As someone who has younger siblings, little cousins, nieces who are in sports, it's about them in the future because I want them to have the opportunity to play Division 1 sports and be in the position I am.

But if man is allowed to be on a team, what's stopping a coach from recruiting a team full of men, giving no opportunity or chance for women to have success?

SMERCONISH: Sia, every day on my website I have a different poll question, and yesterday I'll put this on the screen so the audience can see. Yesterday I asked the question of what we're discussing in terms of what should be the approach. It came down, you can see, perhaps, should college sports teams that feel disadvantaged by an opponent's inclusion of transgender athletes compete or forfeit matches in protest? It was 50.15 percent who said compete, 49.85 percent who said forfeit. I don't think we've ever had a closer result than that.

What would you say to the roughly half who said you should still compete, notwithstanding the concerns that you have?

LI'ILI'I: I think that everyone is entitled to their own opinion and should be treated with respect. But at the same time, I would like respect in knowing that we're the ones in this position and that we're faced with this hard situation that I believe no one should be put through. The emotional damage and the hard decisions that we're forced to make because we're putting -- this put into this position isn't right and it's not fair. It's not what any of us signed up for. We'd sign up to play ball and get an education.

SMERCONISH: Sia, not lost on me is the level of commitment that I'm sure it required on your part and your teammates. I assume, given the level that you've been able to achieve and attain, that you probably grew up playing volleyball. Your parents drove you around to practice. You played in high school. You worked it through college.

[09:10:05]

You hoped to get to the championship game. So for you and your teammates, all but one of whom voted to forfeit, that's an enormous sacrifice on your part. And I guess my point is you're trying to bring this to the fore so that there's a final decision so that women who come after you don't have this issue to deal with. LI'ILI'I: Yes, exactly. It's been a lot of support from many people across the nation who agree with us, and I think that's what's helped keep us going. I know if I didn't have the support of my peers and my family that I couldn't be here today. And yes, I totally agree with you that it takes a lot of guts because a lot of us sacrifice social things when were younger, we sacrificed spending time with our families.

I grew up in Hawaii and family is really big for us. I come from a huge Polynesian family where my parents couldn't afford education if I wanted to go to college. So, volleyball was my only avenue. And I think that it's unfair that a man can come in and take that scholarship that maybe a little girl who's in my place back home in Hawaii is now.

SMERCONISH: Sia Li'ili'i, thank you so much for being my guest. I appreciate it. Thank you.

LI'ILI'I: Thank you.

SMERCONISH: What are your thoughts? Hit me up on social media. I'll read some responses throughout the course of the program. What do we have from the world of YouTube?

I'm passionate about this topic. Absolutely trans should not be allowed to be playing in women's sports. Never. Women have fought too long for rights in sports.

These are tough issues, Kelly. And I said I want to be inclusionary but not at the risk of fairness. And this to me seems like a case, like the swimming case that we discussed at length here, where now it does intrude on fairness. You'd like to be able to include everybody, that's not going to be possible in all circumstances.

Up ahead, the stakes in the Russia Ukraine war have never been higher with nuclear capable weapons in play and shifting U.S. policies ahead of a Trump presidency. Can diplomacy prevail or are we on the brink of a much larger nuclear confrontation?

And there's this. More than 7 million Americans could gain Medicare and Medicaid coverage for anti-obesity drugs under President Biden's proposal. Can we afford that? Is it the right thing to do? Go to my website at smerconish.com. Answer today's poll question, should Medicare and Medicaid cover weight loss drugs for individuals diagnosed with obesity? Sign up for the free and daily newsletter. When you're there, you'll get drawings from illustrators like Steve Breen.

(COMMERCIAL BREAK)

[09:17:18]

SMERCONISH: Just in time for holiday weight gain, the Biden administration this week proposed expanding coverage of weight loss medications for millions of Medicare and Medicaid beneficiaries. Current Health and Human Services Secretary Xavier Becerra told the "Washington Post" that obesity is damaging our country's health and economy. A recent study published in the Landsat Medical Journal estimated that more than 200 million people in the U.S. were medically classified as overweight or obese in 2021. A congressional report this year also predicts obesity related health care costs will rise up to 9.1 trillion over the next decade. But what will the next HHS Secretary have to say about this, especially if it's Robert F. Kennedy Jr.?

(BEGIN VIDEO CLIP)

ROBERT F. KENNEDY JR., TRUMP'S PICK FOR HHS SECRETARY: There's a bill right now before Congress that will make it available to everybody who's overweight, which is 74 percent of the American population. That alone will cost $3 trillion a year. If we spend about one fifth of that giving good food, three meals a day to every man, woman and child in our country, we could solve the obesity and diabetes epidemic overnight.

(END VIDEO CLIP)

SMERCONISH: The United States already has one of the highest rates for obesity and people who are overweight globally. However, Dr. Mehmet Oz, Donald Trump's pick to head CMS, has voiced support for weight loss drugs. Ozempic costs about $1,000 per month if not covered by insurance. The proposed coverage would apply only to people who are obese. Those who are overweight but not obese would have to have another condition such as diabetes in order to qualify for coverage.

I want to know what you think. Go to my website at smerconish.com, this is today's poll question, should Medicare and Medicaid cover weight loss drugs for individuals diagnosed with obesity?

Joining me now is Ohio Republican Congressman Brad Wenstrup. He's a physician, Iraq war veteran, served as medical policy advisor for the chief of the Army Reserve and co-wrote a recent Newsweek op-ed called "Congress Must Address America's Obesity Crisis."

Congressman, good to see you. Respond to the RFK Jr. complaint which is to say this will mask the underlying or treatment of the underlying condition, which is we have unhealthy food choices and unhealthy lifestyles.

REP. BRAD WENSTRUP (R-OH): Well, I think we do have unhealthy food choices and some unhealthy lifestyles, but merely putting out three good meals a day, I can promise you most people with obesity and those that treat diabetes and those that have diabetes know that they won't get better overnight because this requires a team of specialists. This is multifaceted in many ways.

You know, I'm one of the co-chairs of our Doctors Caucus and we have been working towards the idea that we want America to be the healthiest nation on the planet, make America healthy again, whatever you want to call it. But is the return on investment of what we're doing? And by that I mean, are we making America healthier?

[09:20:15] And it's a personal thing. Every patient is different. And so not everyone who's obese necessarily needs this shot, if you will. It is one of the treatment options that we do want to have available to practitioners. And keep in mind in our bills, we don't talk about a particular brand. We talk about FDA approved drugs for this particular purpose that should be prescribed by a doctor.

They can't just get it anywhere. But also, it's a holistic approach because we also include access to dietitians, nutritionists. And you know, when you talk about exercise, hey, I once taught a course for the military where we talked about sleep, activity and nutrition, right? Well, that's fine with the military.

SMERCONISH: I think I lost the congressman. There he is. Now he's back.

Congressman, I lost you for a second. I hope that you're back because I want to ask you -- I want to ask you a question about cost. Put -- oh, we don't have them?

OK, put on the screen anyway. Put on the -- yes, put the full screen up there. This is what I hope to be able to get the Congressman back to raise. And it's the question of, can we afford it?

The Congressional Budget Office, a nonpartisan agency, last month concluded that expanding coverage to anti-obesity drugs would cost Medicare an additional 35 billion between 2026 and 2034, a figure higher than what the Biden administration estimates. The CBO reached that estimate by considering two factors, the cost of the drugs, 38.8 billion and the savings from improved health conditions, which is 3.4 billion.

Is Congressman Wenstrup back with us now? He's back. Great.

Hey, Congressman. I don't know if you heard what I just read. It had to do with CBO projections. But here's the very simple question. Can we afford to do what you'd like us to do?

WENSTRUP: Well, first of all, as I was saying, I don't know what part got through. Not everyone who's obese necessarily needs these medications, so that should not be assumed. It's a holistic approach with a doctor working with you on having coverage for nutritionists, dietitians, behavioral health.

But you also have to look at the return on investment, because if we are able to greatly diminish heart attacks, cancer, strokes, orthopedic conditions, diabetes, all of these conditions that are related to obesity and diabetes, we can do so much more. So there's a huge return on investment that cannot be ignored. But the Congressional Budget Office has a hard time. We have to be able to take a look at and understand that what we're trying to achieve is the healthy human life.

We often look at cost, but we don't put a value to the healthy human life where if we can get people healthier, that they can go to work, that they can enjoy the freedom that they have in America to go on and be part of society that they may struggle with right now. There's so much more to be gained and we can't ignore that component. Our goal is are we making America and Americans healthier through this process? But again, this is a holistic approach. It just we never wanted it to be, especially as doctors, we never wanted it to shot and everything's fine. There's a lot of components that need to be addressed.

SMERCONISH: Congressman, we are hearing you, we're not seeing you. But a quick answer to a final question, if you will. Do you think we should limit this only to those who've been diagnosed with obesity or should it be expanded to those who are overweight?

WENSTRUP: Well, I think obesity is the greater problem. And so certainly that is a good place to start. And again, I think this should be done under the guidance of a physician who is working with the patient who can recognize if there's any adverse events from taking the medication. And this does not necessarily have to be a lifetime drug. If you change your behaviors, if you do change your diet, if you do exercise, maybe you need this for a while to help start to reduce your weight, and in many cases, improve your situation as far as diabetes.

SMERCONISH: Thank you, sir. I appreciate your being here. We'll see what happens.

WENSTRUP: OK. Thank you.

SMERCONISH: This is today's poll question at smerconish.com, let's see what you're saying via social media, thus far. The people who are saying just eat less and exercise don't understand the problem. In most cases, it's an addiction controlled by the brain. That's why these drugs work. If people are healthier because of these drugs, the country will save millions in the end, says John Lewinski.

[09:25:00]

John, I like your observation about evaluating this in the long term because as the congressman said, you look at the CBO numbers and of course in the short term, there's going to be a huge escalation of costs. But what about saving on the cost of those that we're treating later in life because they've got some heart disease, diabetes, whatever the case may be that requires a lengthy hospitalization? I mean, in the end, I don't know this, but in the end maybe there's actually a cost savings or perhaps it's a wash.

This much I know. Go to smerconish.com and answer today's poll question. Should Medicare and Medicaid cover weight loss drugs for individuals diagnosed with obesity?

Still to come, the Ukraine-Russia war escalates, rolling blackouts, nuclear capable missile threats and a shift in U.S. support. Has President Biden's just enough strategy pushed Putin to the brink of nuclear war? Make sure you're signing up for the newsletter when you're voting on the daily poll question. Scott Stantis just drew this.

(COMMERCIAL BREAK) [09:30:33]

SMERCONISH: Has recent escalation between Russia and Ukraine brought us to the brink of nuclear war? The war is already grinding into its third winter. The biting cold felt by Ukrainians as Russia pounded the country's power grid plunging a million homes into darkness with rolling blackouts across major swaths of Ukraine. This comes as Russian President Vladimir Putin threatens to hit Ukraine with a new nuclear-capable ballistic missile.

Last week, he fired the Oreshnik, a medium-range ballistic missile, at Ukraine's Dnipro region. According to U.S. and western officials, the ballistic missile carried multiple warheads which may be the first time such a weapon has been used in war.

Putin said that strike was in response to President Biden's decision to allow Ukraine to use long-range missiles supplied by the U.S. for attacks inside Russia. Allowing the Ukrainians to use long-range missiles known as the Army Tactical Missile Systems, the ATACMS, is a major change in U.S. policy, and it comes only months before President Trump takes office. And he has promised to limit further support for Ukraine.

In fact, Trump just named retired General Keith Kellogg as his choice to serve as special envoy to Russia and Ukraine. He was a national security adviser in the first Trump administration and laid out his peace plan for the war months ago.

We have new players, new weapons, new policy. Will they help navigate the diplomatic road to peace or lead to a larger escalation?

Here to break it down for us is Annie Jacobsen. She's a Pulitzer Prize finalist, writer, producer of the hit Amazon Prime show "Jack Ryan," and also the author of "The New York Times" best seller called "Nuclear War: A Scenario."

Annie, a quick refresher about your book and then I'll talk about the current situation. Why did you use the ticking-clock scenario?

ANNIE JACOBSEN, AUTHOR, "NUCLEAR WAR: A SCENARIO": Michael, as we have discussed, if nuclear war were to happen, it would unfold in seconds and minutes, not days and weeks. Hence, the ticking-clock.

SMERCONISH: How long would it take for the world to end?

JACOBSEN: Well, in the world -- in the words of General Kehler, who is a former STRATCOM commander, in the event of a full-scale nuclear exchange between Russia and the United States, the world would end in the next couple of hours. That is, from General Kehler himself.

SMERCONISH: The missiles that worry you most can they be recalled once launched?

JACOBSEN: Absolutely not. I think this is something that most people don't understand and should be known that any of these ballistic missiles involved in nuclear war cannot be directed -- redirected. They cannot be recalled. And that is why all of this begins in seconds.

SMERCONISH: OK. Now, let's talk about the current situation. So, we've taken the guardrails off the ATACMS for the Ukrainians. Putin responds by lowering his nuclear threshold and rolling out the Oreshnik. What's your level of concern about where we are today?

JACOBSEN: It feels to me like what's going on is a game of sort of nuclear chicken, you know, where no one wants to flinch. And we all know what's at stake here. I'm just astonished every time you think no one is going to cross that red line, they cross it.

You know, when I learned that intermediate range ballistic missile was fired into Ukraine I, like many people, were stunned. You can't imagine such a thing. That is the first time that that has ever happened in war.

I could only imagine what was going on inside the nuclear command and control bunkers in the United States. I write about what happens, what these individuals are doing in these seconds after launch. We later learned that the White House was told 30 minutes beforehand that this ballistic missile was going to go into Ukraine.

I mean, this is all madness. This is escalating things to such a degree. People should actually be frightened.

SMERCONISH: Reuters had an exclusive report this week where they said that the intel community, or at least those who were advising the president, don't think that the risk of Putin using a tactical nuke has escalated in response to our change of policy on the ATACMS. Your response?

JACOBSEN: I couldn't disagree more. I mean, there are so much that is not being said.

[09:35:01]

For example, was NATO notified about this missile coming in? There are -- you know, is anyone talking about the fact that these missiles are road-mobile launched? Meaning the defense department cannot track them necessarily if they're coming -- if they're being fired out of the forest, for example.

And so, it's very easy to hear a certain individual with a -- already what I would say has a horse in the race about this ground war pushing their agenda about why they think this is or is not escalatory. But I would ask people to look to the big picture of nuclear war. That is what is so dangerous. If it were to happen, it cannot be undone.

SMERCONISH: Annie, we have a minute left together. What did you learn in Rome?

JACOBSEN: Well, thank you for asking. I was in Rome giving a talk on war and peace. And I learned something astonishing from the cardinals which, I think, is far more important in the big picture of all this which has to do with treaties. What I learned, and apparently this is not known by very many people at all, is that the original nuclear treaty that was signed by JFK and Khrushchev back in the 60s, back when the world was at DEFCON 2, back when things were as dangerous as they are now, it was Pope John the 23rd that got the two leaders of Russia and America together to get them to negotiate the original treaty.

Why isn't this happening now? And I would say that Pope Francis would be the one that should be looked to to move us all back down from the brink.

SMERCONISH: OK. From your -- from your lips as they say, especially in this case. Annie, thank you so much for being here. Your book is tremendous. It will scare the bejesus out of people, but it's really well written. So, thank you.

Checking in now on your social media comments. From the world of what, Facebook, Twitter?

The war needs to stop now. No more money.

I think there's a lot -- and I had this conversation with Admiral James Stavridis this week, former Supreme Allied commander of NATO, why -- I asked Admiral Stavridis, has there been this escalation coming at this moment when there's about to be a change in leadership in the United States? I'm paraphrasing, but he said to me, it's a lot of jockeying for position, getting ready for the likely negotiations that are to take place.

Each side wants to strengthen its hand knowing that they're about to meet at the table. I hope I did right by that summary, Admiral.

Still to come, Special Counsel Jack Smith dropped the federal cases against President-elect Donald Trump. What if things had been done differently? We're about to explore that with Elie Honig.

And don't forget to vote on today's poll question at Smerconish.com. Should Medicare and Medicaid cover weight-loss drugs for individuals diagnosed with obesity?

When you're voting, sign up for the free newsletter for which Rob Rogers just sketched this.

(COMMERCIAL BREAK)

[09:42:27]

SMERCONISH: This week, Special Counsel Jack Smith filed motions to end his two criminal cases against President-elect Donald Trump, citing a Justice Department policy against prosecuting sitting presidents. On Truth Social Trump posted, I persevered against all odds, and won.

It's quite a conclusion to an unprecedented legal chapter. But could it have ended differently? What if Merrick Garland had more quickly appointed Smith, and if Smith had beaten Manhattan district attorney Alvin Bragg to the courthouse? Joining me now is CNN's senior legal analyst, former federal prosecutor Elie Honig. Elie, this is the exit interview. OK? This is the last time we're doing this.

You and I have talked about all four of these investigations. I wanted to have one more go round with a timeline that we created. Put the timeline up on the screen. It's got all the significant dates relative to from January 6th through Election Day.

I would call out the fact that from Merrick Garland being sworn in as A.G. until Donald Trump was indicted for election interference, it was 18 months. Could this have gone a different way? And if so, how?

ELIE HONIG, CNN SENIOR LEGAL ANALYST: Absolutely, Michael. Well, the key gap there is one you identified. So, Merrick Garland becomes attorney general in March of 2021. And then it takes almost two years, 20 months until November of 2022, when Merrick Garland names Jack Smith as special counsel.

From there, Jack Smith then takes about eight months to indict the January 6th case. We're now into August of 2023, which leaves him, essentially, one year to get this case through all the pretrial, through all the appeals over immunity and other issues, and get it tried before the 2024 election, which was never going to succeed.

But let's say, what if Merrick Garland had appointed Jack Smith right away? Let's say April of 2021. In that instance, even if we give some extra time, let's be generous here and build in some extra time, Jack Smith would have gotten those cases indicted in mid-2022, early to mid-2022.

We would have absolutely had a trial even if you account for the immunity decision in mid to late 2023, maybe early 2024. And to me it would have been impossible for Donald Trump to run out the clock. We absolutely would have had trials and verdicts well in advance of the 2024 election.

SMERCONISH: It means that Donald Trump would have been tried in front of a D.C. federal jury with Judge Tanya Chutkan presiding. What would that have looked like?

HONIG: Well, you can never predict what a jury would do in a hypothetical, but we do have a couple of important data points. Number one, Judge Chutkan ruled against Donald Trump on virtually every issue of importance.

[09:45:01]

I'm sure she would have continued to do so. Second of all, if you look at the 94 different federal districts in this country, the one where Donald Trump is least popular, number 94 of 94, is the federal district for Washington, D.C. He usually gets five to 10 percent of the vote, so he would have had a brutal jury pool there.

And again, finally, if you look at the indictment, the evidence looks fairly strong and straightforward. So, you can't predict but I would not have liked Donald Trump's odds if that trial had happened at all.

SMERCONISH: And you know, from our prior conversations, I've long believed that where Manhattan D.A. Alvin Bragg was the first on the so-called hush money payment case, he kind of sullied the water for all the prosecutors who followed him. Because in my opinion, the American people looked at that case and largely concluded it's not a case that should have been brought.

In this alternative reality scenario, it would have been Jack Smith going first. One wonders whether Garland or Fani Willis would even have followed. Your thoughts?

HONIG: Yes, I think that's a good question. I think it is clear that the American public was not at all moved by Alvin Bragg's indictment, and even the trial and conviction. In this hypothetical alternative timeline, for sure, Jack Smith would have indicted his cases before Alvin Bragg came down with his. For sure he would have been -- Jack Smith would have been the first one to get to trial.

And would Alvin Bragg then have piled on his case on top of those? Would Fani Willis have piled on her case on top of those? I guess, we don't know. But I think by the weakest of the four cases, going first and being the only one to go to trial, that really undermined the entire process here, the entire effort to bring Donald Trump to accountability.

SMERCONISH: Final observation from yours truly, to those who say, well, Garland could not have moved more quickly because he needed to watch the investigation by the House Select Committee. My response is to say, all he needed was a television set turned on on January 6th. Your thought?

HONIG: Yes, that's a nonsense excuse for Merrick Garland. That's opposite world. The way it almost always happens is if prosecutors are serious about their case they will ask Congress to hold off, to stand down. And we've seen that happen in other contexts.

This idea that Merrick Garland had to wait for Congress is ridiculous. I mean, DOJ has way better, way more powerful investigative tools. The entire FBI some criminal subpoena power. If Merrick Garland was serious about digging into this, he could have done it from day one.

And it's worth noting, Michael, at Merrick Garlands' confirmation hearing, he was asked repeatedly, will you look into January 6th? Will you investigate at all levels?

Not just the ground that Merrick Garland said, yes, I will. Well, all he did for the next 20 months was focus on the ground level until he finally got around to belatedly appointing Jack Smith.

SMERCONISH: Well, and waited until three days after Donald Trump had announced formally that he was running for his old office. I mean, I think that's significant. Elie, exit interview now concluded. Thank you as always.

HONIG: Thanks, Michael. Talk to you soon. SMERCONISH: OK. Social media reaction. By the way, you can find me on all the usual social media platforms.

These made for TV charges that the mainstream media continue to beat the death out of it should be put to death. This was a political persecution.

Goody4u, I'm simply, one last time, going back and saying, what if the missteps by prosecutors had not been made? I agree with you that the perception of the American people is that it all became political. And I believe largely that was determined, dictated by Alvin Bragg being first on the hush money payment case. It could have gone a different way. It could have gone a different way.

You still have time to vote on today's poll question at Smerconish.com. Ready for this? Should Medicare and Medicaid cover weight-loss drugs for individuals diagnosed with obesity?

Mine is a yes vote. I'd love to be in the majority on one of my poll questions. Subscribe to the daily newsletter. While you're there you'll get exclusive editorial cartoons. Check out what Jack Ohman drew for us.

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[09:53:34]

SMERCONISH: So, there's the result so far. A lot of voting, 29,382. Should Medicare and Medicaid cover weight-loss drugs for individuals diagnosed with obesity? Overwhelming, three-quarters, 76 percent. Hooray. I'm in the majority of one of my own polls. First time in a long time. We say, yes, it should be.

I should add to that that -- and I wanted to get into this with the congressman when we talked about it earlier. Bernie Sanders is right when he says, but we can't be paying a multiple of those medications in comparison to what they pay in Europe.

That's true. The cost has got to come down. And we shouldn't allow the government to get soaked. More social media reaction to today's program. Let's see what we have.

There are reasons why we separate men and women in sports. Men have a natural advantage which does not just go away by transitioning.

Jamal, I agree with you, in the case both of the swimmer and now the volleyball competition. And I have to say I admire what it has taken of these women who've competed all their lives to get to this point and now say, because of the stakes, we have to forfeit and give up our moment of competition.

You know, we want to compete in the NCAA tournament, but we're going to forego that so that those who come after us aren't confronted by the same challenges. It really requires a lot of them.

More social media reaction. What do we have? Twisting legal system to go after a target. So many errors and unconstitutional methods. It was mind-blowing.

[09:55:01]

Like a third world nation, Jane Who Votes. I think, in response to me and the assessment that I had with Elie Honig of what went on in the Trump prosecutions. But imagine if it had been different. Imagine if the events of January 6th had taken place. Merrick Garland now comes in as the attorney general, sees the events of January 6th or had already seen the events of January 6th, appoints Jack Smith because he knows Trump is going to run again.

And Smith moves quickly, as he did, frankly, and there's an indictment, and there never is an Alvin Bragg. And maybe there never is a Mar-a-Lago document. And there certainly isn't a Fani Willis. There's only one case, and it's for January 6th. And it actually goes to trial, allowing for time to go to the Supreme Court of the United States on the whole basis of the immunity issue.

What then would have been the outcome? We'll wait for the book or the movie. Hope you had a great Thanksgiving. See you next week.

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