moment, not hers. you would not know that, that sher is performing for all the coverage of taylor and the super bowl, even on this network, tracking her plane from tokyo to vegas like it's santa's sleigh on christmas eve. will she make it. you know what will happen if she doesn't make it, they will flip the coin and play the game and hand out the trophy and we will turn off the tv and go to work on monday morning. again, i'm not anti-taylor swift. it really isn't about taylor. it is about us. i will say, i am pro usher, 7:00 on the dot i'm in my drop top cruising the streets, raymond the 4th. somehow we have overshadowed this landmark achievement of a 30 year career withen cess sant coverage for just this weekend,

a fan who's going to watch the game like the rest of us. thanks for joining me today. smerconish is up next. legal exoneration, political nightmare. i'm michael smerconish, legal nightmare. the report of the investigation into president biden's handling of classified documents. the word exoneration, an overstatement, i think, how bad was it, the president who turned down a pre-super bowl interview with a guaranteed audience of millions in an election year sudly felt obliged to speak to the nation in prime time from a diplomatic reception room at the white house. when he did, he seemed to be in denial about the substance and the political implications. the majority of americans

including a majority of democrats have major or moderate concerns about biden's fitness nor a second term. when cnn raised that with the president he said that was only her incorrect perception. >> when you were asked about your age, you would respond with the words, watch me. many american people have been watching and they have expressed their concerns about your age. >> that is your judgment. that is your judgment. that is not the judgment of the press. >> they expressed concerns about your mental akuty. you told me in d december they're are many others -- >> i am the most qualified person in this country and will finish the job i started. >> lee was prompted obliged to ask that question given the special counsel's findings. it wilfully contained and

disclosed documents marked as classifieds, inters other words that he knew it and the report was damning and trumpian. can you distinguish on which side of the screen you're looking at donald trump or joe biden's lax filing system. what seemed to have roiled the president more than his reckless archiving was his memory especially about his deceased son, bo. was that graty us to or a cheap shot or effort to help donald trump. yesterday, kamala called on all that and more. >> the comments made by that prosecutor, gratuitous, inaccurate, and inappropriate. the way that the president's demeanor in that report was characterized could not be more wrong on the facts and clearly,

politically motivated. >> when the vp invoked politics she played into trump's hand that prosecutors are motivated by politics. might biden's reference to poor memory actually have been a gift for the president? the report said biden exhibited poor memory when interviewed by his ghostwriter in 2017, that he spoke painfully slow and struggled to remember events or decipher his own notes. forfurther in an interview last fall, his interview was even worse, he did not remember when he was vice president or when his term began or when within several years, bo had passed. what was the relevance? in a word, intent. the prosecutor said he did not believe he could prove biden had the reckless intent and mental

state of wilfulness and why he said biden would present himself to a jury as a sympathetic elderly man with more memory. those went to evaluating potential wrongdoing not withstanding a sitting president cannot be indicted. as a trial attorney put it to me it was actually a favor for bi biden, because absent that intent, his conduct was indistinguishable for former president donald trump who faces felony charges for his conduct. the president didn't see it that way or help his cause during his presser when he mixed up the presser between the president of mexico and egypt and that had long since passed. soon after the presser ended thursday night, i watched another world leader being subjected to a two hour interview.

vladamir putin was questioned by tucker carlson. many objected that carlson would give the russian dictator a platform. it was controversial before it began. hillary clinton called carlson an idiot for his role. i said, forget what you think about tucker carlson. i don't want to shield us from controversial speakers. if i did, i'd lose many of my radio and tv guests. i'd rather hear them and expose them through questioning. i watched with great curiosity. nothing that putin said changed my mind about the unprovoked invasion of ukraine. his views did not metastasize in my living room. for the first 30 minutes he spoke without notes in a lecturing style, most free of

interruption and dating back to the 19th century. it was boring and tedious and hard to attack in real-time. he looked and sounded formidable, smart, cagey, measured, not the feeble stuff of internet lore. it was a reminder whoever wins the american elections will have their work cut out for them going toe-to-toe with the crafty russian president. that is something we should all keep in mind as we watch both biden and trump because we don't want a leader who will be putin's lackey, nor one capable of matching his intellect. joining me now is ellie, senior cnn analyst and former prosecutor. great to have you back. the times said exonerated. is that a word you would have used after reading robert hur's report? >> not at all.

i respectfully take issue with the word exoneration. it means somebody cleared of any wrongdoing. think of people falsely accused of a crime they had nothing to do with. this report is more like an inch away from an indictment. you highlighted the key passage in your opening there. the third sentence of this report says the evidence showed joe biden wilfully retained and disclosed classified documents. there is a federal crime for wilfully detain nationally sensitive defense information. donald trump was charged or indicted for 32 counts of that exact federal crime. what is fair for prosecutors to do, we need to look at other factors around this. in his judgment that mitigates against an indictment and that called prosecutorial discretionary and some debate about how he exercises that.

and no indictment. >> the president says it's gratuitous. is it gratuitous to talk about his memory laps? fernlts. >> the report is required by law. he had to write a report setting forth his findings as to whether the prosecution was required or not. as to some of the language around the memory loss, it's relevant to the prosecutorial determination here because hur says we might have a problem proving intent because of the memory loss. i do agree the way he writes it and describes it is over the top and more colorful than necessary. i think there are flourishes there a prosecutor would not have to include. you could write, we believe given our interviews with mr. biden, there could be intent questions and his memory at times are faulty or failing and i believe there's a little bit of extra punch in there. >> in terms of the discretion he

excised what went into the report and did not go into the report, he didn't need to talk about donald trump in the detail he did and lambast trump when he is facing indictment for all of his actions. >> there's a whole section in the report robert hur compares and contrasts, i think accurately donald trump's case with joe biden's case and points primarily to the fact donald trump is charged with obstructing justice and joe biden mostly cooperated with the investigation. it is relevant for the prosecutor to take into account whether somebody obstructed or cooperated but the contrast is a political gift to joe biden. if you want to pars this near indictment, this report, for political favors, there are actually political favors that go both ways here. >> now the white house pushes back, everybody knows how the

president himself handle this thursday night. i think because of that response they elevated the issue whether we get to hear the tape. the president's interview was recorded and so too the ghostwriter. what's the likelihood the american people get to hear exactly what he did or didn't remember? >> this is going to be really interesting. it is clear under the law this report had to be written and the report references underlying evidence including this tape. it is not entirely clear whether we get to hear it. if there had been a trial and doesn't look like there will be, it would have come in and we would hear it. that shows, talking about a tape joe biden told his ghostwriter, at one point joe biden says the classified materials are downstairs. that shows us he knew he had these documents. he took them for a reason.

early on when this scandal broke, joe biden and his spokespeople were suggesting documents get mixed a i round and a lot of things move. joe biden knew all along and took some documents for a specific reason and wanted to craft a narrative about afghanistan and remind medium he was right about afghanistan. a lot of joe biden's statements have been seriously undermined by the facts of this case. >> thank you as always with great legal analysis. joining me is james car val, the raging kagan, now the co-host of the podcast, "politics war room." thanks for being here. is it too late for democrats to change horses. >> in a sense, it's never too late if you had a nominee and the nominee dropped dead the last week of october you'd have

some mechanism to have a replacement. it would be late to do it and a lot of chaos. you could have one. lyndon johnson dropped out in march of 1968 and we had a nominee. it's never too late but the later it gets the more confusing the process gets and you get into dnc picking candidates and state party chairs. there's a person called elaine cormack who knows more about this than anyone in the world and written books on it. i'm kind of surprised she hasn't been interviewed yet because she has massive information about what happens by what date. >> from the sidelines and with your great institutional and political knowledge, what do you see going on here? >> well, the president is old. the public knows he's old and he is old. there's no conveniencing one way

or the other. convincing one way or the other. it is written in marble in washington, d.c. there shall be no democratic special council or independent prosecutors. the professional center will not allow that and only be republicans. i have no idea how somebody went there and got a chisel and etched that in marble but i do know that is the law of washington. this guy wasn't just a republican, he was about as far out there partisan republican as you can be. why we appointed him i have no idea. merrick garland's philosophy, i think, is we'll appoint somebody so bad we'll get credit for appointing someone good. i literally don't get it. i don't get why -- >> you beat me to the punch in reminding he was merrick garland's appointee, not as if

donald trump was the one who decided here's the guy to look into joe biden. >> right. i think merrick garland is a man consumed with easing the washington centrists, or pleasing the cosmos club people. i have no idea. why he picked this guy, i have no earthly idea. as far as i knew, democrats practice law in washington. why is it that out of 15 special counsels, 14 are republicans? and the come medic loved that. i just do not understand. >> so speaking of chiseling in marble, we want you to live a long life, but some day the e epitaph is it's the economy, stupid, the words james carville is known. economies ebb and flows and gets

better and age comes for us all. if you're running the campaign, what do you do? do you put him out more? put him out less? how the hell do you handle this? >> don't accept a super bowl interview. your polling averaging, three points down in a two-way, the biggest television audience, not even close and you get a chance to do a 20, 25 minute interview on that day and you don't do it, that's a sign your staff doesn't have much confidence in you, there's no other way to read this. he's not going to do debates. he is old. i know what it is because i'm almost as old as he is. it's never going to get better. today is the youngest you'll ever be the rest of your life. they have made the choice they

want to to through with this. democrats, myself being one, fund-razors, donors, door knockers, flushers, volunteers, the whole democratic infrastructure of the country needs to be told, okay, this is what the president is going to do and this is what the he's not going to do to try to work-around whatever it is. i thought the super bowl interview was telling. i also thought the fact the documents he took were about afghanistan. i think he's obsessed. i do think the best thing he's ever done as president and maybe the best thing any president has done is just get out of afghanistan. don't pass go or collect $200, just get out. he did and he was for that for a long long time. he was consumed that he had this view of history i think is 100%

correct and he just wanted people to know that was his view and he never was for that. >> right. as you know, his critics will say it was chaotic, that he did it impulsively and there was loss of life there need not have been. i totally a i grow about the super bowl, the one time the whole country comes together, an election year, advertising you don't have to pay for and they passed it up. enjoy the game and thank you as always, i appreciate it. >> getting out, it doesn't matter losing a war is never a good look. we lost that war. >> james carville, ladies and gentlemen. what are your thoughts? hit me up on social media? i will read from the world of you youtube. i believe joe was a bit compromised and believe hur was totally -- therein lie this debate. i think it went to intent he didn't think he could establish.

elie's word was flourish, he took some liberties. there was a reason to put that information in this report. did it need to have that detail? therein lies the issue. i don't want to read it, to hear it, will we get to hear that audio? won't that be insightful. smerconish.com for today's poll question. should jill biden suggest to her husband that he not seek re-election. go to smerconish.com and sign up for the news letter. while donald trump seems likely to win the supreme court battle to remove his name from the ballot. and he lost to the d.c. court of appeals. what does this mean to further delay the january 6th.

>> and i'm an elderly man and i know what i'm doing. did he help or hurt his cause? a possible yardstick, the long running conspiracy theory about michelle obama replacing biden on the ballot? david axelrod joins me next.

after that scathing special counsel report about the president's mental fitness, his fiery defensive emergency press conference seems to have dug out a bigger hole and counsel was sent out the next day to clean it up. what does it say about his ability to hold onto the incumbentsy. joining me is david axelrod, a senior cnn political commentator. great to see you. in special counsel comments would not have landed with the reso resonance, if the public hadn't already seen for themselves, true? >> absolutely. the things most damaging are the things that confirm people's suspicions or fears.

when mitt romney made that 47% comment back in the 2012 election it confirmed a negative narrative about him when hillary clinton said basket of deplorables, it confirmed a negative narrative. long before this, there was this narrative out there about the president. it's the big medium on social media, something republicans have been pushing a long time and clearly damaged him in polling. that pre-dates the special counsel's gratuitous remarks. i agree with elie that i think he went way over the top on those. but nonetheless, that is what the headline off of the report, the 350 page report was. >> if you were in the white house thursday, you know the lay of the land, you know the diplomatic reception room. i have been it a few times but

not like david axelrod. the advance man said that's tight, the media are there and tough to contain and probably should have waited until the next day. what do you think? >> he was like a big sirloin steak tossed in the middle of a bunch of hungry dogs there. it was not optimal. i might have done a one on one interview with somebody. that many, might have been better than the mob scene that we saw, a thing that was more controlled, where he was less likely to be provoked to anger, which he was in that particular setting. it clearly didn't have the impact that they wanted. the only thing she showed was some vigor, which was probably g good, some edge that may have helped him. on the whole the thing was not good. one point that hasn't been

really made enough in addition to hitting this piece about his age, the press conference gave all kinds of targets for the republicans in the house who are going to bend benghazi this issue to death. they have signaled they will go after the transcript and the tape of his conversation with his ghostwriter. they will do everything they can to keep this alive because their standard there is a dumpster fire of legal and ethical issues and they want to muddy the waters. >> i got to ask you about this. look who vegas odd makers say have the best chances being elected this fall. trump-biden, next in line, michelle obama, 11-1, ahead of nikki haley, gavin newsome, robert f. kennedy junior and i

don't know about you, there's always a family member who says, in my case, my brother, keep your eye on michelle obama. i say, that is crazy. what should we be saying about michelle obama? >> here's what i know. michelle obama loves this country. shes a brilliant person and brilliant communicator. she was a conscript to politics and never interested in a political life even when barack obama was a young politician, she really didn't participate much in his campaigns. i was with him in his senate campaign in 2004, i think she showed up twice in the whole campaign on election nights. she is not someone who likes politics, she doesn't like the tone and tenor of politics. i would be floored if she would

consent to that. they feel that they gave ten years of their life to this. i'm sure she feels, as barbara bush did, when she said there has to be someone other than the bushes and the clintons who could be the president of the u.s. my gues that's her attitude and i always say i have a chance of dancing in the ballet next year than president of the united states. if you see me running around in a leotard. >> i was going to say, i hear they're hiring. maybe once and for all david axelrod just put it to rest, unless cindy adams is not watching. thank you, david. >> all right, michael, great to see you. from the world of x, formerly twitter, what do we have? biden should not run and harris would be worse for the country. who's next in line? this is the

conundrum, not only the timing and how far into the process, james carville saying significance if they need to, the lbj example. there's not an obvious process, do you? do you think gavin newsome would be identically standing by if it were michelle obama? i'm falling into the trap. i believe it is a zero percent like likelihood, it's a drinking game among the obama's, everywhere i time some fool like me brings it up, they're clinking their glasses, probable with richard. vote on today's poll question, should jill biden suggest to her husband he not seek re-election. with all the talk about biden, many are forgetting trump's legal peril and his

immunity claims this week. the supreme court will soon make a decision to decide whether he gets tried before election day. sign up for my daily newsletter and get exclusive editorial cartoons from the legends.

i'm daniel lurie and i've spent my career fighting poverty, helping people right here in san francisco. i'm also a father raising two kids in the city. deeply concerned that city hall is allowing crime and lawlessness to spread. now we can do something about it by voting yes on prop e. a common sense solution that ensures we use community safety cameras to catch repeat offenders and hold them accountable. vote yes on e. not all christian mccaffrey's are the same. some are all-pro running backs. some aren't. i'm christian mccaffrey and i make tacos. just like not all internet providers are the same.

don't settle for slow. yikes. or unreliable. that's going to leave a mark. or weak. get real deal speed, reliability and power with xfinity. hey, you okay? i'm gonna pass out if that's alright. get the real deal, get xfinity. . amid the uproar over the biden documents case, don't forget trump's own legal peril. within the next 10 days or so the supreme court might make the most consequential decision of our lifetime pertaining to donald trump and the election. i'm not referring to whether colorado will be permitted to knock trump off that state's ballot. a more arcane but important issue legal process. on tuesday the u.s. court of

appeals in the election interference case pending now. the judge said we cannot accept former president donald trump's claim that the president has unbounded authority to commit crimes that would neutralize the most fundamental check on executive power, the representation and implementation of election results. the ruling against trump was not a great surprise, although the comprehensive nature of the 57 page opinion was thorough to the point of clearly wanting to be the final word. more revelatory was the accompanying judgment by the three-judge panel which basically said trump has until monday to notify the supreme court of his intent to file an appeals or where it of ser schori, which he will surely do, a highly accelerated timeline, three weeks or so to be sent back to the district court. no doubt in recognition of the

election calendar. once trump provides notice of his intent to appeal, the supreme court will decide whether to stay the ruling pending trump's filing of a where it. or will they allow the judge to re-list the case for trial. writ. trump wants to delay all the cases against him and run out the clock until election day. a supreme court's day would freeze the proceedings at the trial court's level and make it likely to be stayed until the election. the judge could simultaneously put the case back on her trial calendar. iffer here's the issue. iffer can donald trump get the necessary five votes needed for a stay? he appointed 3 of the 9 justices. that's no guarantee how any of them will vote. whether this case viewed by me and by many as the most potentially perilous to trump,

whether it gets to trial before the election could determine the election winner. the poll last week sos donald trump over biden by five points but when asked if a trump conviction would change their vote the lead switches to biden by two. joining me now is a professor at the penn carey law school and specializes in civil complex legal litigation, conflict of laws and constitutional law. thanks for being here. what's going to happen on monday? >> that's the big question. the d.c. circuit, as you described, they have taken every part of this case they have control over and they have advanced it. they have said we are not going to allow ordinary delay to slow down the potential trial calendar for this case. what they don't have control over is the part that involves

the supreme court. what the court is going to need to decide is whether to put the case on hold while they are figuring out whether they're going to hear an appeal. on monday, in very concrete terms i think what's going to happen, mr. trump will give notice to the court he intends to file a petition for writ, the device to seek appeal in the supreme court and he will ask them -- at that point, the supreme court will continue to put things on hold until the supreme court decides what to do about a stay. the next big decision they have 0 make, the supreme court, will they stay the proceedings while they're deciding whether to hear an appeal. >> how much of that is going to play itself out publicly? >> that's a great question. certainly, the courts deliberations will not be played out publicly at all. the court's decision will be public and i think it will be public fairly quickly.

my guess is the court will decide within about a week and a half whether they will issue the stay hes a requesting. an interesting feature of the timing here. from his perspective, in order nary cases you get 90 days to file a writ before the supreme court. what the he would like most is have the court issue a stay and say go ahead and file your petition and he'll take 90 days. that means a trial couldn't happen any sooner than the end of the summer at the very best and basically the trial put off until after the election. another possibility is that the court might say, you've asked us for a stay, you've told us you're going to ask for a petition to appeal to us, we are simply going to treat your request for a stay as your petition and tell you -- we'll grant you the stay but start briefing the issue whether we should take this appeal right now. for they might even go ahead and take the a i peel.

that i have the option of accelerating the timeline, too. in the case involving his ability to be on the ballot under the 14th amendment, the colorado case held before the court. they accelerated that with rocket fuel. we know what it looks like when the court wants to move things forward. the question whether nay they g a stay is important or whether they advance the timeline or instead give him the maximum amount of delay. that's the big question. that will play out in public when they tell us what they will do. >> give me the theater second answer. if we're counting noses, whose vote are you most interested in in determining whether trump can get five votes? >> the two conservatives on the court i think care most about the institutional integrity of the court are the chief justice and justice barrett.

the chief justice shows he cares about perhaps his legacy but also institutional regularity of the court. justice barrett was a scholar in procedure in the federal court and i think cares very deeply about these issues. there has been a lot of procedural irregularity in the last several years in the court. you can't count on their commitment that way. they're the two members of the court on the conservative side that care the most making clear they're using their powers in an appropriate fashion. >> you agree with me despite all the attention just paid to colorado, that's a big case, i don't mean to minimize it, what you are discussing whether the supreme court enters a stay is li likely outcome determinative whether he gets a trial. >> it will determine whether

this criminal trial happens before or after the election, absolutely right. >> thank you so much. appreciate your time and expertise. >> thank you. checking in on your social media comments from the world of x. are there any good arguments for trump's immunity claim? if not, it will start by summer. i don't think so. i don't think he has -- in some of these cases i think he's got a good legal defense if not a good factual defense. in some cases it goes vice-versa. if you're asking for my opinion, no, i've long said this is the most perilous case he faces, best on the facts for jack smith, probably the mar-a-lago case. this is potentially lethal to him as a political matter. we will find out within a week or ten days whether he will get a delay. still to come your best and worst of social media comments.

don't goforget to go to the pol should jill biden suggest to her husband she not seek re-election. and this sketch this week. funny, right?

. i'm told the social media world, particularly fired up today. if he's not competent enough to be charged with the crime he committed he certainly is not competent enough to be president. you can't have it both ways. so none of your business, did i say it right? i had the same reaction when the defense from the white house was, well, there was a lot on his plate that day. you heard that, right, right after 10/7, the unprovoked hamas

attack in israel, dealing with all of that. i heard myself saying, how well is he dealing with that? if he's distracted and all those things in the report are true it makes me wonder how he's able to fulfill those other responsibilities. more social media reaction. what do we have. more than anything the special counsel lreport about biden is gift to you to make president trump president. i assume you do, sir, believe trump is a threat to democracy because you're accusing me of carrying his water and having a secret agenda. michael, thank you, thank you for the openness and candid conversation on cnn, talking about the issue that's on everybody's mind. a different way to look at it. we can air it out, the

democrats, you folks, once and for all, is this really the guy we want to go with before we have closed out all the other options. thank you for forcing a decision because we don't want to wake up and say, the signs were there and the special counsel told us in his loreport. one more. any idea what no labels is up to? joe, no is the answer, no is the answer. joe lieberman told me it's going to be like the first week of march when they've got to make a determination. if no labels means what it says, which is that if the country doesn't want either of them, then they're going to do something to about it, then the moon and the stars have lined up for that. i tell you something else, this is going to be a year with or without no labels of a lot of third party activity. i think the third party

candidates there are a number of people running. and i don't know which way that cuts. i don't know. but there's a lot that's going to take place. coming up, the final results of the poll question at smerconish.com. should jill biden suggest to her husband that he not seek re-election? sign up for the newsletter when you're there. you're going to find exclusive content from great political cartoonist. how about this? a subject we haven't even discussed yet.

two leading candidates for senate. two very different visions for california. steve garvey, the leading republican, is too conservative for california. he voted for trump twice and supported republicans for years, including far right conservatives. adam schiff, the leading democrat, defended democracy against trump and the insurrectionists. he helped build affordable housing, lower drug costs, and bring good jobs back home. the choice is clear. i'm adam schiff, and i approve this message. that's what we've got so far. wow, whoa.

35,892, should jill biden suggest to her husband that he not seek re-election? can we call it two-thirds, who say, yeah, she ought to get in her ear. put on the screen the complaint before the commercial break, more than anything the special counsel account by biden is a crusade to make trump president. i'm not the one making trump president. you are. because apparently you don't want me to talk about the report. you want me to treat the report and the concerns that exist about biden's cognitive abilities, like just ignore it. please, michael, don't bring it up. and what, nobody is going to see? you should be thanking me for the open airing on this program about the issue that is most of concern to voters such that three-quarters say they're worried, they're worried. so thank you for giving me the opportunity to say that. thank you all for watching. hit the website. i'll see you next week.

is it possible to count on my internet like my customers count on me? it is with comcast business. keeping you up and running with 99.9% network reliability. and security that helps outsmart threats to your data. moaire dida twoo? your data, too. there's even round-the- clock customer support. so you can be there for your customers. hey billy, how you doin? with comcast business, reliability isn't just possible. thanks. it's happening. get started for $49.99 a month. plus, ask how to get up to a $1000 prepaid card with a qualifying internet package. don't wait, call and switch today! i'm daniel lurie and i've spent my career fighting poverty, helping people right here in san francisco. i'm also a father raising two kids in the city. deeply concerned that city hall is allowing crime and lawlessness to spread. now we can do something about it