trump gets name-checked by his former number two. i'm michael smerconish in philadelphia. former vice president mike pence called out his old boss yesterday, but not in a way that trump wanted. it was just one of several developments yesterday all tied to the events of january 6. first, former vice president mike pence said the words "pretty trump is wrong." >> and i heard this week that president trump said i had the right to overturn the election. president trump is wrong. >> here's what trump had to say about that, quote, the vice president's position is not an automatic conveyor, if obvious signs of voter fraud or irregularities exist, that's why

the democrats and rhinos are working feverishly together to change the very law. because they now say they don't want the vice president to have the right to ensure an honest vote. in other words, i was right. and everyone knows it. meanwhile, the justice department released brand-new video on friday evening in connection with the january 6 inversion. i have to warn you, these contain violent imagery. the videos including the mob infiltrating the office of house speaker nancy pelosi. pepper spray being used against police guarding the capitol. and verbal threats of violence against the vice president. watch the right side of your screen, you're going to see some vicious behavior against law enforcement. two guys in particular. on the right side of the screen. here comes one of them. there he is with the red hat. watch his buddy show up in a tan -- in a tan shirt, a red hat and beard. here he comes. there it is, right cross. keep watching him. keep watching. upper cut coming.

upper cut, at law enforcement. disgraceful, right? looks like a little billy club being used. all of this as sernsed members of the january 6th committee list cheney and adam kizinger. representatives are participating in democrat-led persecute. in response, utah senator and 2012 gop nominee mitt romney who happens to be the uncle of the rnc chair he tweeted, shame falls on parties who would censure persons of confidence who seek truth in vitrvitriol. honor attaches to liz cheney and

adam kinzinger. and censuring liz cheney and adam kinzinger because they are trying to find out what happened on january 6th, huh? and house speaker with the mounting pressure he's under to endorse a primary challenge tore cheney, but cheney responded by calling gop leaders, quote, willing hostages to a man who admits he tried to overturn a presidential election. and secretaries he has pardoned defendants some of which have been charged with seditious conspiracy. yet another development, phone records reveal on the morning of january 6th the former president called representative jim jordan and spoke to him for ten minutes. this directly contradict what is jordan told the rules committee which is that he only spoke to the president that day after the attack. that afternoon, jordan took to the house floor to object to the certification of president joe biden electoral win. okay. so what does it all mean? i'm not surprised that former

vice president mike pension believes any of the things that he said yesterday. i'm only surprised that he finally decided to say them. his remarks to the federalist society were a flat-out rebuke of former president trump. he name-checked trump. he said at trump was wrong. that he had no right to overturn the election. and he even went so far as to call thatted in un-american. something else, pence's choice of venue was politically wise. this was not a speech that pence could have delivered to the rnc gathering in salt lake city that censured cheney and kinzinger. he would have been panned there. instead, he chose to break with trump on constitutional grounds in front of the federalist society. this is a society of libertarian lawyers who fashion them as originalists or textualists. in other words, they want the constitution strictly interpreted which is why pence tied his comments specifically

to art 2 section 1 of the constitution. they would get that reference. if there would ever be a supportive oddence of right-leaning lawyers for mike pence, well, this is it. and by combining his credit sich of president trump that kamala harris would preside over the transference of power back to republicans he guaranteed himself an applause line. it was commitically brilliant. whether pence's break with his former boss changes the bigger picture of the gop that remains to be seen because up until now it's been just a handful of establishment republicans usually on their way out of congress who suddenly find their voice. and as for how far vice president pence is willing to take his new resolve, let's see if he testifies before the january 6th commission. several of his former aides including adviser mark short have already done so. so, too, his former lawyer and three-star general who served as pence's national security adviser. i want to know what you think.

go to my website at smerconish.com. and vote on this week's survey question. will mike pence testify before the january 6th committee? yes or no? is trump right when he identifies his opponent's concern about the law. joining me matthew sellaman, he's a fellow at harvard center for law. taught at harvard law. and just published a provocative paper covered at the "washington post" called "a realistic risk assessment of the presidential election of 2024." okay, matthew, can a vice president reject the electoral college? >> absolutely not. that was never the case. that wasn't the case in 2020. and it won't be the case in 2024. vice president pence was absolutely correct in rejecting that power. and vice president harris doesn't have it going forward. >> would you call that a textualist or originalist

interpretation, something that the federalist society would agree with? >> yes. the vice president didn't have this power. that's very clear if you look at how they operated from the very beginning. the founders were aware of the points of interest between the president and vice president. they knew that the vice president couldn't have that power and their practice at the time confirmed thatthy never meant to give the vice president that power. >> okay. well, to president trump's point, then why is there change needed in the electoral college act of 1887 he said i'm right, otherwise there wouldn't be this move afoot to modify the law? >> for two reasons the electoral college act of 1887 is difficult, lawyers have a hard time understanding it. that's why there was confusion what the vice president's legal

power, and congress' legal powers were in january 2021. it should be changed for that reason. but there's another, which is a more important reason, although tell doesn't give the vice president powers it gives congress powers to intervene in a law that's too dangerous to let remain. >> have there been issues with the electoral college act of 1887 since 1887? >> yes, the most dramatic problem was, obviously in 2021. but there have been objections before and it hasn't got ton the point where it is now but it's come from both parties and that's important to remember. in 2004, members of the democratic party objected to the re-election of bred bush and raising questions about voting machines and potential grow prytys in tabulation of votes. those were frivolous and shouldn't have been brought. now, it never got to the point

where there was any possibility of actually overturning results in 2024. that's obviously changed since january 6, and that's why the law has to change as well. >> so, i referenced in your introduction that you have taught about disputed elections including hay harvard law school. and you recently published a risk assessment for 2024. i know you've war gamed out scenarios. what worries you most about 2024? what could happen? paint the picture. >> what worries me the most is actually not congressional interference of its own on the type that we saw on january 6th of last year. it's instead, the manipulation of results by a governor. so the senate has demonstrated itself to remain reasonable. and we hear from senator romney's comments just yesterday that there are a large number of senators in the republican party who remain committed to the rule of law. but we can't be so certain about that, about the house of representatives.

and representative mccarthy's silence on this matter speaks volumes. and also we see in gubernatorial candidates in swing states that those candidates are committed to the idea that they would not have certified the election results in 2020 and wouldn't do so in 2024. so the scenario that i'm most worried about is that a governor, say, a governor purdue in georgia sends in a fake slate of electors. and then the house of representatives refuse to reject it. and under the law that's written wright now, there's nothing that can be done to stop that. >> so, a final thought for me, the number was 147 republicans who went along with former president trump on january 6th. they been want to except the electoral college outcome. if it's presented as, are you with trump or against him, i can see those republicans remaining lockstep. but if it's the abstract electoral college act of 1887, maybe if there were a vote now, they would almost feel like they

could get away with fine-tuning the law. do you understand the point that i'm making? >> i do. >> and if so, give a 20-second reaction. >> i think it's smart. i think it's wise and i think it's also principled. because in the abstract, the princele is just the courts and politicians or democrats should be making the decision about the result of an election and that are principle is impossible to deny. so when members of congress are put to a vote about whether they endorse that principle in the abstract, i think it's impossible for them to vote the other way. >> matthew seligman thank you so much for the expertise. >> thanks for having me. remember, i want know what you think, go to my website at smerconish.com. answer the survey question, will mike pence testify before the january 6th committee? won't that be interesting. yes or no. up ahead, is it smart when business ceos refuse to hold from lawmakers who certified the

2020 election, is that good business? we'll have an update on the 130 ceos who made that pledge last year. plus, a collegiate trans-swimmer has been breaking school and national records and now 16 of her teammates say she has an unfair advantage. i'll ask olympic silver medalist sharon davies, what the solulutn might be. dayquil severe is a max strength daytime, coughing, power through your day, medicine. new from vicks.

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we have to be able to repair the enamel on a daily basis. with pronamel repair toothpaste, we can help actively repair enamel in its weakened state. it's innovative. my go to toothpaste is going to be pronamel repair. after the attempt to overturn the 2020 election, 130 american ceos took aold and unprecedented stand in january of 2021. pledging to freeze donations to lawmakers who voted to reject the results. remember, there were 147 in all. eight senators, 139 house members, all republican. it might surprise you to know the ceos initial motivation arose in a meeting january 5th, the day before the attack on the capital with the actual vote. it was spurred by the release of the tape of trump's january 2nd call with georgia secretary of

state brad raffensperger seeks more votes and because so many republicans had said they would be voting against certifying the results. the weekend after the results of january 6th, the company started announcing they were suspended contributions and objectors corporate funds from these sources have plummeted 60% to 97%. here's specific examples, ted cruz down 95%. kevin mccarthy, 60%. steve scalise down 70%. mo brooks, 97%. while the objectors are primarily reliant on individual donors, this is has got to hurt. 130 companies that pledged to stop contributing to lawmakers who challenged the electoral vote on january 6th between 80% to 89% held the line through the first two quarters of 2021. but new data says it began to wobble. compliance is now at 60% even though we're not at the midterms

yet. while this means 52 corporations have ended their moratorium, perhaps, more notably, is 78% on board. among those withholding pepsi, pnc, target, mcdonald, coc coca-cola, disney, ebay, among those no longer complies, abbott labs, aflac, boeing, comcast, duke energy. eli lilly, wells fargo, pfizer, north drup grumman. some companies chose to stop contributions to either party, joining a list of several hundred abstaining such as ibm, levi strauss and cnn's owners discovery. the pledge came about by the conferences moderated by the next guest. professor and associate dean at the yale school of management. he's been running ceo meeting for decades. professor, nice to have you

back. if i'm a stockholder in any of those, meaning those who complied or broke the moratorium, isn't my position, hey, worry more about earnings and dividends instead of getting involved in these political skirmishes. >> michael, thank you for that lead-in, your introduction knocked the ball out of the park. you covered the key statistics on what it just showed friday. congratulations on the fast analysis. that's exactly right. nothing can be more important in a strategic context of a business leader than to make sure we have trust in our system. to have free enterprise working we have to have belief. a political scientist from france who visited in 1840, with his great book democracy in america referred to as social capital which is public trust. he said it's more valuable than financial capital. yes, we don't want angry shareholders and finger pointing, harmony is what ceos

need to drive their businesses and trust. and that's what this saul about. >> right. but to be cynical, aren't these contributions necessary sometimes to make sure that the business interests are covered by these politicians? and if i'm worried about my 401(k), around i saying say out of this mess? >> it's never heard ibm, and tom watson jr. never heard them whatsoever. it never hurt levi strauss. and it's not hurting discovery. so, no, i can't see it. to stand aside, those great companies, at&t, verizon, pepsi, it's sure not hurting them to not be a part of this nonsense. >> i know your glass is half full, right as the organizer of the conference from which this sprung, you say, wow, 60% are still toeing the line of this so-called moratorium.

but are you disappointed that 40% have broken ranks? >> well, you know, i didn't think it was a good image. in terms of money, it's inkwerchsial. it was just a temporary mandate to let it expire is about $7 million. that's not even 1% of total campaign contributions to congressional candidates. the money is inconsequential. but simple bottomically, some of them had money in transfer at the time they made the pledge. that took care of 15% of them. others talked to their congressman, who reversed their positions like we saw vice president pence peek out. as we saw a number of them now admit they regret their vote and this was a fair and free and honest election so they've made concessions the other way. in one case, they had a local manager who made a contribution that was against company policy, they were sure it didn't happen, but it did. but there are execution issues. and you look at the fact that this money doesn't matter and

the fact that it is crushing the objectors, the objectors are down 60% across the board. in terms of corporation donations. but, yes, it's 87% individual contributions. i would like to know are where the clergy are, where are the trade unions? why are we just pushing looking at business leaders. the 1960s, it came from professional associations, unions, clergy locked in arms, pension funds where are they all now? >> in other words, your point is premised on what was said, we're nowhere if we don't have the establishment of society from which we can do business. one final question, by the logic that you've shared i would think that kinzinger and cheney would be the beneficiaries of great corporate pac donations. are they, in fact? is that the case? >> well, as you saw a lot of republican stalwarts have been lining up behind those two, including former president bush. so we're seeing that a lot of

ceos do celebrate them, because they like the show. and most of the viewership in this show take a centrist position. that's where the ceos are. they're not captured by ease party and they appreciate the individual patriotism of adam kingerer and liz cheney. >> professor, thanks, we'll keep our eye on it. >> thank you. >> checking in on social media from the world of twitter. what do we have? a ceo, private person can and should do what they want with their money. businesses shouldn't be allowed to contribute to politicians at all. unfortunately, the law of the land says otherwise. citizens united really sold the country to the highest bidder. j.t., you make a good point in terms of the ruling. i agree with you, i wish citizens united didn't exist but my fundamental question of the professor still stands. i guess his response, his response, in simple terms,

because he's much brighter than to say it this way, but who can do business if it's an unstable society, meaning politically unstable. i was trying to give voice to someone who is worried about their retirement saying gee why is that company i invested in the stock market with a political skirmish. interesting debate, right? remember, this is another question i want you to answer. go to my website@smerconish.com this hour. tell me whether you think mike pence in the end is going to testify before the january 6th committee. it's a yes nor. i'll give you the results. still ahead, the recently fired coach of the miami dolphins is suing the nfl alleging that their rule requiring clubs to interview minority candidates is aisha raid. well, we've got the great stephen a. smith to weigh in. plus, trans-college swimmer lia thomas is setting records

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is the policy that's supposed to ensure diversity hiring in the nfl actually just creating sham interviews from minority candidates who aren't really being considered for the job? that's the charge of a new lawsuit filed this week by brian flores, former head coach of the miami dolphins against the nfl and three of his teams. baste on the text from his former boss bill belichick,

flores believed even though he was interviewed it had already been filmed by a white man. since 2003, the nfl had the rooney rule, named for the steelers bill rooney. it is design to hire gentle marcs in front office jobs. in a legal sfens% of players are black, 11 out of 28 head coaches in the nfl is black. there are coaches of puerto rican and mexican december scent and lebanese. the nfl saying the suit is without merit, but like colin kaepernick did on the players side he seems to put his reputation at risk. flores told "new day" earlier this wk the following. >> i would say i feel similar pressures that black people feel in all fields, not just

football. but we have to do more. that we have to be better. that we have to, you know, we have to be exceptional. just to stay on an even -- level playing field. and it's, you know, in a lot of ways unfair. but that's -- i know i'm not alone in that feeling. i know that. and, you know, i think we're going to get more stories similar to mine. >> joining me now is espn host and executive producer of "stephen a.'s world," stephen a., great to have you back. why aren't there more black coaches? >> well, it's the proverbial ceiling as you say. but i think we have to look at nfl owners there's nothing else to deduce for what has transpired over the year than ultimately come to the

conclusion that they don't trust black men to be leaders. that's really what it comes down in the national football league. when you look at least 70% of nfl players are african american december sent. and you see in 2022, there's only one black coach 19 years after the rooney rule was instituted in 2003 at which time they had three black coaches, they've clearly taken a step in the wrong direction. there is no denying that. some people could attribute it to the notion that billionaires don't like to be told what to do. they're going to do what they want to do because their their own bosses and you work for them. you look at the nfl and roger goodell and those guys how they put an end to this issue. in the end, they answer to the owners, they come to what they're going to do and how they're going to do it and where their comfort level resides with black men being leaders of other young black men. that's what this comes to.

>> do you think it's deliberate? do they know what they're doing? is it a conscious decision or unintended result of a cultural die namic? >> well, you can say it's both, from the standpoint that obviously you can't admission the notion that a lot of them, they feel the latter. here's the bottom line, you had something to do with the rooney rule being instituted. you're a member of a legal as an owner, honor char khan, a pakistani american, for the buffalo bills. she's an asian american. those are the only minority owners in the national football league. when you look at the 30 others knowing that the rooney rule was instituted in 1983, you signed off on it in terms of african american candidate, mandating that and you still felt the way that you yourself are okay with

it being implemented that has to be attached to that. you can say, hey, we just want to hire the best candidate for the job. look at just this week, for example, jerry jones who a lot of people, including myself are incredibly fond. the dallas cowboys is an organization that never hired a black coach. what does he do? he a lewds to atlanta falcons, when justin garrett was in waiting as a head coach for phillips. that is just one example, where you saw somebody that had the support of ownership even before they got the job, in they're the preferred candidate and you make that known, well what kind of option does that leave for african americans who have been stunted by opportunity to get these kind of jobs. >> those belichick texts, at first blush, you think, wow, this really strengthening

flores's hand. what does it really show? maybe the fix was in, but not necessarily because of race. quick response from you. >> yeah, you could say that, but i will tell you, bill bell will chick is plugged in. he's incident in all of this, just as he was congratulating mistakenly, he was congr congratulating brian daboll from the buffalo bills who got the giants job. he's plugged in with some things he was hearing. you could point to that, but in the end, brian flores was scheduled for an interview three days later. the new york giants had scheduled that interview, but they knew they already had their man. and that's the issue that brian flores has. >> you know they vehemently disagree with that. but i hear your point. stephen a., thank you for coming back. appreciate it. >> no problem, take care. >> checking in on your tweet it's and facebook comments.

adam, what do we have? >> michael, it's obvious the rooney rule is a scam to appease a desire for african americans that make up 70% of the players. there's one active coach in the nfl. the ap reporting since the rooney came in effect, 21% of head coaching positions have been filled by people of color. 21%. i point that out, today there's only one. and people might think there's always been that limited number. look, in corporate america. i talked about this on radio. and i took phone calls on sirius xm from people this week and i said, call me if either a. you've been quote-unquote victim of a sham interview? or if you had to conduct one. phone calls all full. people saying this goes on all the time. doesn't make it right but there's like an internal candidate someone that the business likes. and everybody knows it's going to be this person. but because there's a requirement, they then have to go out and conduct interviews knowing that they won't bear fruit. like who is that fair to? one more if i'm got time.

real quick. brian flores better have some proof to back up these accusations if not this isn't burning bridges, this is scorched earth. well, flex, the real interesting aspect of this case, there are several, it's the claim that he makes against the owner of the dolphins, ross, saying he was offered 100 grand to, you know, throw those games, quote-unquote trust the process if you get my reference. still to come a transgender swim's wins with controversy. now with teammates speaking out. i will speak to a former olympic swim here thinks without rules changes transgender athletes might be able to game the system. ld. we wanna buy your car. so go to carvana and enter your license plate answer a few questions. and our techno wizardry calculates your car's value and gives you a real offer in seconds. when you're ready, we'll come to you,

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♪ahhh!♪ wooo! vaporize sore throat pain with what should be the rules concerning competitive transgender athletes? this week, 16 university of pennsylvania swim team members sent a letter to school and ivy

league officials expressing concern about their own trans teammate unfair an. this coincides with kristi noem signing a new anti-trans law called fairness in women's sports that only students based on their biological sex may participate in a team, sport or athletic event designated as being females, women or girls. guys, here's the deal, my prompter just froze. there's controversy at the university of pennsylvania as to what to do with a trans swimmer named lia thomas. i have the perfect person with whom to discuss the situation. it is sharron davies, herself an olympian and knows aittle bit about subject matter and when prompters fail. sharron, thank you for being here. hearings the question i want to ask you, can we be both fair and inclusive with regard to lia thomas? >> so, let me say, it's not an

easy situation. and hello from england, michael. i'm very well down on the prompter because it's not an easy job. it isn't easy, circle to square. however, we have to look at the science, we have to look sat why we have a female and male category, the reason we have this, otherwise, women wouldn't win anything in football games or hockey field or ice hockey field. male and female bodies are or just very different. sport is done by our bodies. i just want sport and however i want everybody to do sports. my conclusion would be an open category where transgender men and women would be welcome to compete in any classification. so sports is for absolutely everybody. absolutely should be but first and foremost, it has to be fair. that's the reason we have categories. we have categories of weight in

boxing. disability, age categories, everything to create this. >> but are there enough transathletes, if you're creating a category for trans athletes to compete against themselves. i don't know the answer, based on the amount of attention they get, it tells me there probably aren't enough for there to be competitive contests? >> no, i'm not suggesting that, row applies a male classification with an open classification. and it's still protective, inclusive and it's very welcoming on everybody. >> one of the things that was contained in the letter by the 16 teammates said, look, lia thomas competing as a man was ranked somewhere in the 400 range-i forgot the exact number. >> 432. >> now, as a female has gone to number one. and something that i don't see, i don't see this going in reverse. in other words, i don't see

trans male athletes presenting the same type of dynamics which i think under scores your point. >> yeah, trans men, not biological females, and they concern able to compete, because of the doping system. and nobody has questioned that all. obviously there's a difference between 10 and 30% on olympic level. people talked about the michael phelps, he's tall, great wing span. to be honest, yes, he has, so has everybody else in that final. michael is 0.5% faster than the next fastest man. he's 12.5% faster than the next woman. that's a half the length of a pool. if we want competitive sport we have to talk biology and we have to use science. swimming usa has brought new rules in which is a step in the right direction. however, it's very sjective

with a panel i'm not sure that the way to go, how do we eliminate male puberty, denser bones, oxygen ability around the body. there's so many benefits that comes from the male biology. i don't know how you mitigate that. >> sharron, effort new policy you were touching on says transgender swimmers will be required to provide quote-unquote evidence that cisc athletes doesn't exist. >> you touches on it, lia vgts when she was competing, for three years in the male get, 432nd and now number one in the female. the only way you would say there's no mitigation is if she was 654en in the women's event and obviously she's not. >> that goes back to the question can we be inclusive and

fair, not based on the current dynamics, not unless we create an alternative form of competition? >> yeah, we can't fair if we allow male biology into female races. i think what we have to be is inclusive and welcoming by changing our categories. therefore having an open category which really doesn't allow everybody to be involved in sport in a protected category. people born female, we can't change our biological sex, have the same opportunities as the male counterpart. women's sport has always had a tough rap. we don't get the same price money. we don't get the same tv exposure. it's been getting better in the last years this would be a massive step in the wrong direction if we want to encourage women in sport. >> sharron davies, thank you for being here. i just are regretful i didn't get to introduce you on the introduction we had.

let's check in on the tweets that have come in. although i can run circles around my 6'3", it's time for a transgender lane. >> look, my heart breaking for lia thomas. i want lia thomas to have all of the benefit thalia thomas has learned of collegiate competition. i'm mindful of the fact that the story has turned that 16 of her own teammates are uncomfortable with the situation and regard her as having an unfair advantage. i know what the problem is but i've not seen a workable solution thus far. one more if we have time, maybe we don't yes, no? all right, we're moving on more of your best and worst tweets, facebook comments. have you voted yet. please go to smerconish.com. i talked about this at the outset of the program. will mike pence testify before the january 6th committee? answer yes or no. i'll give you the results in a moment.

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time to see how you responded to our survey question. this week will, not should, will mike pence testify before the january 6 committee: yes or no? here comes the results. a lot of voting. 16,793. let's call it 60/40. 57% say no. 57% say it is one thing to go speak to the federalist society in florida but it is another to do this. here is the social media reaction that came in. what do we have?

does pence get censured for speaking the truth now? in the end he would normally receive nervous applause. i did note in the critical part of the speech he combined with a comment about kamala harris in 2025. cleverly written. at the end of the thought, there would be applause. remember something else. this is all a race against the block. part of the january 6th committee or commission because if republicans as expected re-take control of the house of representatives, you can well imagine that comes to a grinding halt in short order. another one, if we've got time for it, and i think that we do. pence is coming out yesterday tells me, yes, he will testify. look, mark short has already been in front of the january 6th committee. the people around him, and short was with him that day as chief of staff. there is no doubt in my mind

that pence wants the story told, right? given what he was through. some of the footage released last night that we have never seen before is more harrowing than what we have seen previously relative to some of the threats from mike pence. as i said at the outset of the program, nothing that he said surprises me that he believes it. the only thing that surprised me is that he was finally willing to say it. one more on social media. replying to smer connish. not a chance. if he does, he is done in the trump republican party. he should but he won't. i think he is already -- he probably doesn't know this, but i think he's already finished with the trump component and they still control the gop. remember, there is staggering data out there that says most republicans won't vote for someone who thinks that joe biden won the election fair and square. so it is not mike pence's party at this point. it is donald trump's party.

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good morning to you. welcome. it's saturday, february 5th. i'm christy paul. >> i'm boris sanchez. you are live in the "cnn newsroom," and we are grateful that you are with us. we begin with hour with former vice president mike pence. he's come out with his most forceful denunciation of the big lie forced by former president trump. >> the former vice president called out his former boss by name saying that, quote, president trump is wrong in claiming that he, meaning the vice president, could overturn the 2020 election. now, vice president pence previously defended his actions on january 6th. but donald trump has ramped up his push of the bi