former vice president mike

pence has been subpoenaed. this is been a major move by the special counsel investigating donald trump's efforts to overturn the 2020 election. pence was key to trump's plans to stay in power. this is what the former president said on january 6th. >> i hope mike is going to do the right thing, i hope so. i hope so. because, if mike pence does the right thing, we win the election. all vice president pence has to do is send it back to this dates to recertify and we become president and you are the happiest people. >> okay, i want to bring in cnn chief law enforcement intelligence analyst john miller. also legal analyst jennifer rodgers, and andrew mccabe, the former fbi deputy director. great have all of you tonight. jennifer want to start with you, we had nick akerman on last hour, former watergate prosecutor who said that without pans there is no indictment. that the special prosecutor does not bring in indictment

without pence's testimony. do you agree with that? >> i do not know, but i will say that he is critical. if they're going to bring indictment he will be front and center because there were conversations that he had with trump that nobody else was privy to and obviously at that time it was the crucial conversations about whether mike price was going to block the certification, which is what trump wanted him to do. so crucial, yes, but necessary i'm not sure? >> andrew, what do you think about that. yes, he is critical, he is key, he knows what donald trump asked him to do about certifying but there's been all sorts of other witnesses. whbe no indictment without prince? >> you know, i'm not sure i'll listen that i would characterize it that way. i think it is possible to go forward without, him but what i do not think is possible is for jack smith to conclude his investigation without trying to secure pence's testimony under oath. when you are conducting an investigation of the size and

scope and certainly one that will be second guessed from every quarter, you have to look under every rock and mike pence is a very big rock for jack smith. he has to try to get him under oath, he might not be successful, but he has to do everything possible to secure that testimony. if you look back at the mueller report, the fact that the mueller team chose not to subpoena donald trump remains as a kind of hanging -- that many people including myself think was a fundamental flaw in the investigation. >> here's what mike pence himself, john, has said about, basically what president trump wanted him to do. he said this to the federal society a year ago. >> president trump said i have the right to overturn the election. president trump is wrong. i had no right to overturn the election, the presidency belongs to the american people and the american people alone.

and frankly there is no idea more un-american than the notion that any one person could choose the american president. >> so there are times when he will talk about it, so we do not know if you will talk to the special counsel, but there are times when he wants to get off his chest. he is also written about it in his memoir. >> i think he and andy summed it up that there are conversations that mike pence had with donald trump, likely alone, possible with others, that his directly thrown-y is critical. in terms of tipping in cuba, where a cases at, when you are jack smith and you are subpoenaing the former vice president of the united states it is a pretty good signal that that is one of the interviews, if not the interview, that you stay for laugh. because you won't have all of your investigative ducks in a line before you talk to that critical witness. you want to be able to counter that with any kind of questions where you know everything that you could know at that point.

so, it could be telling us that jack smith is rounding third base. >> that is really interesting. here's who has already testified to the grand jury, so not jack smith the special counsel, but the grand jury, who can also testify to president trump's state of mind. that is pat cipollone, the former white house counsel, after filming, marc short who is pence's chief of staff, jake -- former dhs official. so it seems like they have some information that they can rely on without fans, but what if jen he says in the executive privilege, that does not have to testify? >> you will have to testify but the question is how long does it take. if you try to invoke executive privilege, then doj through the special counsel will go to court and they will fight it. but the law here is a clear, in a criminal matter, if you have a testimony that you need that is important, and you cannot get it from elsewhere, that is

the key here then that will trump any executive privilege. that is very clear supreme court president, u.s. versus nixon. that's not the case for congressional investigations which is what congress did not have the ability to force people to testify in the same way, but he will lose that fight and he will testify, the question is how much litigation do we see before that happens? >> that's really interesting because i have not heritage spelled out that unequivocal before. do you agree that jack smith is rounding third base in terms of being close to being done? >> i would like to think so. i think it's as good a sign as we have seen so far, so it is entirely possible that he is. in addition to that list of folks that we know, we went in front of a grand jury, there are likely many others who did not go to a grand jury but who participated in voluntary issues, and for whatever reasons felt they didn't get them in front of the grand jury. so they've done a lot of, work jack smith is very aggressive lean forward prosecutor and

there is every indication to believe that he is carrying that style through this investigation. >> john, he can also, i assume, set some conditions. this is to both of you. if he has been negotiating, perhaps with the special counsel or the doj, could he set some conditions of what he will answer, won't answer, what he will give up, and won't give up? i'll start with you jen. >> somewhat, they're going to want his testimony under oath. they would prefer to have him interviewed first, with fbi agents so not technically under oath about with the possibility of exalts data. and so they would rather do that then put him in the grand jury and fans would probably rather be that way too so that he can bring his lawyer with them, so they may be negotiating about that. >> could he do written answers? i know that was an offer. >> if the special counsel agrees to that, they will not agree to that. they want his actual statements. so there may be some investing -- negotiations there, but he will not be able to say that i will

only be able to answer some questions not others. if he does that, that's when you go to court and get the real answer. >> john? >> i had to turn unprecedented times -- >> every day is unprecedented. >> i remember the shock waves, and you will remember this too, that went through congress when we executed,, when the fbi executed a search warrant in a congressman's office. how could this happen and there is all kinds of, you know we are in a world right now where it is almost routine in our discussions and what our audience years every, day that a search warrant is happening at former presidents president. >> or current presidents residence. >> or a current president, or another residents. and the former vice president is under subpoena for a grand jury testimony in a criminal matter. i cannot remember a time like this in politics on the white house level. this is all remarkable. if you go back to clinton and

monica lewinsky there is a grand jury and he gave a statement. grandeur's are supposed to be secret, it is videotaped, and it ended up being released. all of these special accommodations in these matters can go awry for people who want to special conditions to testify remotely, and so on. so we will all have to see what pence works out. among this crowd he is been the straight shooter variety in terms of going by the book. >> okay friends, thank you very much for all that. in the meanwhile, we want to talk about. this this chinese spy balloon is in pieces in the fbi is combing through those pieces for evidence. so we're going to find out what they have found out about what the chinese were up to. plus, the comedy of congress. >> i think that senator schumer would have prayed the rosary while facing maka if he thought it would turn up more voters in

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evidence of the chinese spy balloon is now in fbi hands tonight. officials say that the balloon was capable of monitoring u.s. communications, former fbi deputy director andrew mccabe is back with us. andy, i was struck by the pictures of the fbi looking in the ocean, hauling stuff out of the ocean after the balloon was shot down and debris spread over miles. what are they looking for and how can they find it? there are so many little pieces, how will they be able to determine what that balloon was determining are gathering? >> so alison those photographs are very familiar to me. i actually started my career in the fbi back in 1996 working on the twa flight 800 cases, where

they spent months patrolling the long island sound picking up tiny pieces of a shattered airplane and resembling it in a hanger. this is some of the work that the fbi does better than any other organization on the planet. they are very, very good at understanding what they are looking for, using technology to find those things whether it is at the bottom of the ocean or the bottom of a lake or in someone's house, and then taking that material back to the lab to really tear it down to its elemental pieces to understand where it came from, what it is used for, and who is responsible for it. so i'm confident that that is exactly what they are doing now. >> as i understand it, the reason that the fbi is doing all of this because it could be used as evidence and future criminal charges. how would that work? who can be charged criminally? >> well we do not know yet, and i think that that is always a possibility that the fbi kind of hold out there. so they will do this

examination in the preserve all this material so that it could be used as evidence. but truthfully, their main goal here is to understand what this equipment was used for and how it might be threatening our national security. the intelligence collection from an operation like this is far more valuable to the fbi and the country then really the idea of bringing in indictment against a person located in china or some other form place who you never really see in a u.s. court. so i am confident that there are probably partners from the intelligence community and other agencies who are participating in the examination of what they bring up, and we are all trying to, this could potentially be a real gold mine of intelligence collection for the icy. >> okay, andy, thank you very much. it's great to have you. i want to turn now to the former u.s. ambassador to china, max bacchus, is also a senator from -- thank you so much for being

here, or i will want to talk about what you've seen and what you think this balloon represents. do you think this should have been shot down before it was either before over alaska or montana? >> well, frankly the bigger question is what is the evidence? what will the fbi find, how dangerous was the balloon, how much does it jeopardize national security? that's really the question. we've got to get the facts. i think it probably would've been better if the secretary austin were to have called general -- the director, the military director in china in advanced. hey, what's going on, what's this all about, to try to defuse the tension rather than calling up general after it was shot down. so i think we've got to get the

facts, but the main thing is to not let this, no pun intended, be blown out of proportion. we've got to keep cool, keep calm, because this is extremely important relationship u.s. china, so let's not get too far ahead of ourselves and get the facts. >> let me tell you what president biden said about that today. i will play this for you. >> have relations now between the u.s. and china taken a big hit? >> no. no. the idea, shooting down a balloon that is gathering information over america that makes relations worse? >> that was actually. yesterday ambassador, or do you think about that? do you think it does not have an effect on relations as the president seems to be suggesting? >> i think it does have an effect, i think it was a big mistake for china to do this and president jinping has egg

on his face. either he knew about it, -- prior to the visit of secretary blinken from the united states, or he didn't know about it, and who's the pla who flooded over and there was some commit miscommunication within the country. so it is hurt, no question about it. look at all the congressional hearings, all members of congress very upset about it, and so it is not helpful. now, is it huge? probably not, but it's not helpful. what it comes down to his both united states and china need to say okay, where the two biggest countries, let's figure out how to work better together. it's not happening yet because the united states today is so domestically, politically helpful to attack china, attack china both political parties. including the administration. that's fine, it's a good short term game, but after a while it causes china to hunker down, the more difficult, and it never helps to call people names and were kind of doing

that. so i'm just hopeful that we can take this incident and say wait a minute, let's put this in perspective and find a way to work better together. >> do you think it's possible they sent to dover just out of sheer brazenness? i mean that was one of the theories that they've been sending, apparently, these balloons around. we have not always noticed them over the u.s.. they've been doing it globally and they've been doing it with impunity. in other words, do you think it's a mistake or do you think it's just brazenness? >> well, i do not know. i have not talked to president xi jinping and asked him. but i did think it was more mistake, a big colossal era. why the senate, i do not know but, if they were to do it intentionally than that is, it means that they are politically tone-deaf to the extreme. >> we are just talking to andy mccabe, perhaps you heard, it that now it is in quantico. the fbi agents are analyzing it to see what they can glean

about the intelligence that it was able to gather, if any, or the technology on. it what will the u.s. do without? >> well, it depends what they find. you know we surveilled china, as china's prevails us. i'm not sure that we have balloons over china, but we sure have satellites over trying to. we have u2s flying along the chinese coast and they are pretty good, just as china's surveilling us. so i suspect that we will get some information, i do not know if it will be cataclysmic, but it is just another example of how we have both been trying to learn more about each other. i want to underline the main point here. we've got to communicate better together, you know china did not call us up and say hey, we've got a balloon that's gone astray. that would've been great if they had done that. we did not call china up before and say, what's going on here? that would've helped to. we just have to communicate more, we have to work better together with each other, because china is not going

away. it's a big country, it's always going to be there. they may have a different system, but they're not going away. so let's try to keep the stuff in perspective. >> we'll see if this is an opening to do that, former ambassador to china maxwell case, thank you very much, great to talk to you. >> you bet. you bet. >> up next, members of congress cracking jokes about each other at an annual dinner. >> some think that raphael warnock is the future of the democrat party. but nothing says political superstar like needing a runoff to beat herschel walker.

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boasting one another at the washington press club 77th annual congressional dinner. and nancy mace, she slayed. check are out. >> there is only one reason that i was chosen to be a republican speaker tonight. it is because kevin mccarthy could not get the votes. thank god he's not here tonight because i will probably be called in the principles office tomorrow morning. did you watch mccarthy during the speaker's vote? i know many of you were in the halls of congress during that vote, i have not seen someone assume that many physicians to appease the crazy republicans since stormy daniels. it only goes downhill from here, people. come on. but let's be honest, we all knew that matt gates would

never let the vote get 18. and i know everyone thinks that republicans aren't funny, but if you get a bunch of us together we can be a real riot. >> back with me is john miller, and former democratic representative mondaire jones, but also cnn's john berman. so is the congress just filled with comedians? >> i think a lot of people are unintentionally funny, right. george santos in some way is -- >> a laugh riot. >> but not because he intends to be. look, nancy mace has sort of mastered or is on the verge of mastering the stick where, optically, she distances herself from the republican party but on the substance she votes with the crazies who wish she was just criticizing every single time. >> john, jokes about january 6th and matt gates, too soon? >> too soon and a little off

kilter. it was a great line until you remember that people died that day, so not exactly on pitch. >> it confuses me, john. because part of its him using, it's definitely musing, but it's also confusing because first of all it's that, do we think that's funny, january 6th? but it's also, you can all of together in a big room one night and then the next morning you go back to being toxic? >> that's one of the things that i took out of this is that, i actually do not think that there are that many opportunities where they get in a rome and laugh together anymore. what do you think it's funny or, not gonna let everybody else just died, i have to admit i trickled more than once. but this harkens back to a day when they would be political debates during the day and they would all get by -- get-together and drink at night. there's a lot of reasons why that does not happen anymore, but i think that it is not

wrong to long for that moment where these folks could occasionally see each other's people. >> i certainly agree with that, and when you are in congress, to that happen? >> we definitely socialized. some more than others. i had a lot of great floor conversations, i was closer to the people with whom i served on committees, i was on the judiciary committee, ironically with some of the most far-right members -- >> and what was that like? what was it like in the halls when you have to interact with them? >> people are a lot more charming and a lot friendlier than they are when they are debating. i mean look, you give as good as you get if you're good at the job of being a member of congress, especially in these polarized times. but after the cameras are all of you really are supposed to be respectful. and when cameras are on your spears backfill. >> i agree, this is the thing i find so vexing which is that if you guys really have relationships, let us see that because all we see is the vitriol. and that's why a night like this, i think about the white

house correspondents dinner two, which also confuses me sometimes because everybody is locking it up in there as they if they are besties and then the cameras go back on and everybody's hateful. again let's listen to the comedy, let's listen to a little bit more of it nancy mace and here is also senator chuck schumer. >> come on george, you've given republicans a bad name and that is lauren boebert's job. just kidding lauren, don't shoot. [laughter] i mean really, who lies about playing college volleyball? who does that? if you are going to lie at least make it about something big like you actually won the 2020 presidential election. >> i'm the first jewish majority leader. [applause] but, i am not just do it.

like some other yorkers in congress, i'm jewish, and the real thing baby. >> you are traveling, john. it got you. >> can i just say, this was a moment for nancy mace to get back at her political enemies, right. people like lauren boebert, marjorie taylor greene, matt gates, even kevin mccarthy at times. these people have publicly feuded at her and so this was not just -- >> do you think she wrote her own? stuff >> i think she did. she got help from her staff probably, and a good staff is worth a compensations. >> it's a pretty funny staff. i'm curious who wrote those. >> need to, because those are real jokes right there. i mean, she was delivering them well but when i read them first on paper i was like wow this is funny stuff. >> you could see on every wind

up to the punchline she's like okay, here i go. now it's common. >> we did not play the one that i thought was the funniest where the youngest member of congress -- >> she dropped an f bomb. >> that's why we didn't play it. >> it's still a, tonight i feel like they can do that. i'll just tell you guys, she's talking about the youngest member of congress and she's 25 and she said after you, i have stretch marks older than you. i like that. >> miller laughed again. >> see john, or loosening you apparently? >> i need that. >> you're welcome. meanwhile, the sitting president typically grants a pregame interview to the network hosting the super bowl. this sunday it is on fox and it seems as though president biden has not committed to that interview. will he? should he? that is next. power e*trade's easy-to-use tools like dynamic charting and risk-reward analysis

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tonight, president biden still is not committed to a pre-super bowl interview with fox. the idea of a super bowl presidential sit-down originated with george w. bush. president obama picked it up in 2009 and sat down for an interview every year. president trump was the first opt out, that was in 2018, that was an interview with nbc. back with me is john miller, former congressman derek jones, and john vernon. should president biden sat down with fox? >> as a card carrying member of the journalist, party i always want politicians and public

officials to do as many interviews as possible. i think it is always great to hear from them whenever we can and they should feel free to answer questions all the time. that said, i've covered enough politicians, people who run for office, to know that they do what they think is best for them. if the white house and joe biden's political advisers think that sitting down with fox news would be good for them, you will do it. if he doesn't, he will not? >> i don't think it's gonna happen. >> i don't know, but it would seem like they would have to be planning it already. but congressman my point is this, i don't think that the fox audience often gets inaccurate or unfiltered view of president biden because many of the hosts their slice and dice him six ways to sunday. so it's an opportunity where he could reach their audience in a way that he normally does not. >> in theory. i do not think the people at

fox news are part of the journalism party. they are not real journalists. every chance they get to distort this presidents record, and it's not just mirror policy disagreements, those are fair game. but it is the vitriol, the blatant lying, still to this day election denialism. it's the platforms of loud white supremacists. i'm not going to second guess this president's decision not to sit down with these people. you know, look. pete buttigieg does a great job when he sits down with fox. >> what about that? there's an advantage, maybe, to it? >> i don't know the answer, but i'm not talking about the people at fox although it would be rewarding. them i'm talking about the viewers, if they deserve to hear this because it is a huge audience. i mean the super bowl, does not get any bigger than that so you think no, that he should not? >> the president had a huge audience during the state of the union when he spoke to tens of millions of americans across the country and the world even. so i am hopeful that that was

affective, and it got great reviews and i think that the white house is thinking about this and has made a decision that it is not going to be at his best interest, but also the decision has not been made as far as the reporting. >> i'm guessing that the super bowl gets higher ratings in the state of the union. >> and the commercials are better. so i think he should, i hope you will, it is a tradition. i go along with john which is more interviews are better if you're communicating. i guess that the wood white house communications office has the look on fox news as a hostile domestic power, so already senior player in there. but at the same time, joe biden is a good communicator, i think that we saw a piece of that even in some hostile territory of the night. tradition matters. we've been talking on this show literally all week about civility and the loss of it. let's hope that there is enough civility and respect for the

president of the united states that they can at least have a useful conversation. >> speaking of tradition, i'll put up on the screen. so obama spoke to cbs in 2013, then he did sit down with fox and nbc, cbs, trump did fox first. then he opted out of nbc because i was told that that is when he was going after the football players for taking in the nfl that he did not want to be asked about that. 2000, 19 cbs, and then needed fox again. president biden did cbs, nbc, during his entire time of presidency. but john, what about that, that he could just reach a huge swath of americans. >> look, he could. the one thing with all those interviews on the screen, the thing they had in common is that each of the presidents thought it was good for them to do. again, it's capitalism. they do it if they think that they can profit from it. i think it's that simple. >> he would not be sit down

with hannity, he'll sit down with brett bear, and so it will be a, i think, for the president i think that there are some settings that he is not a great communicator in and there are some that he's better. i think a one-on-one he's good at, actually. and so you might want to seize on that. >> we saw that when he went off script with the state of the union. he was very daft in his interaction, with a very rowdy, hostile -- >> do you think he knew that was going to happen? there is a question about whether they craft or that? >> i think whenever they accuse somebody that they cut social security and medicare, even the dozens of than that said they want to do precisely that, there are certainly more than three. there are three members of the united states and its alone on video saying that. others will say look, i do not want to cut social security and medicare but i think we should make changes to. it but they do not agree with lifting the income cap when it

comes to social security. so clearly they are talking about the age of eligibility, which is a cut by the way. or privatization, which you know, if you are leading up to the 2008 financial crisis, it would've also been a cop because your savings within wiped away. >> john, last word. >> i would be impressed if they scripted that out and then did heckling during the rehearsals to see how they get through it. my faith in the communications job would go up. >> all right, gentlemen, thank you. really fun to spend this time with you, thank you so much for being here. all, right ten former nfl players suing the league's disability benefit program along with rodrick adele and the disability board of accusing them arbitrarily denying disability claims. up next we'll hear directly from one of the former players. let's go! ♪ what you gon' do? you ain't talkin' 'bout nothin'! ♪

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suing the nfl's disability benefits program, commissioner roger goodall and the disability board. the players accused them of denying disability claims in an arbitrary and biased way. joining me now is former nfl player eric smith, and attorney sam cassell representing the former nfl players. gentlemen, great to have you here, so, we say there was a pattern of erroneous and arbitrary benefit denials. so give me some examples, what happened? >> well, it was -- like you go to i send you wherever in the country, you see these doctors, and you have 500 pages of medical records in my case shoulders, neck, back, knees. you meet with the doctor, when you get your x-ray, and he comes in and spends five, ten minute evaluating you.

of all the injuries i have had when i played, even doctors i have known for my seven year career, they would spend more time evaluating one simple injury, then this doctor was supposed to do to give us a full evaluation of our body. >> i was interested to read, eric, that you suffered 13 documented traumatic brain injuries. but, you were denied benefits in 2013. then in 2015, as i understand, it you were seen by different physician who was one of the lowest paid physicians, and he found that you had 20 line of duty impairments. so, how do you explain that discrepancy? or how did they explain? >> i feel like the best way to describe it would be paid to play, they get paid to see more people, you deny more people, you -- get sent more people, so you

get set more money for the nine, people why wouldn't you deny. >> in the lawsuit, sam, you guys allege that between march 31st 2019, and 2020, basically a year, 4.5% of the players were found disabled by physicians who are paid more than $210,000. in that same time period, 30% of players were found to be disabled by physicians were paid between 54, 000, and 60,000. so another words, the lower paid physicians find the athletes more disabled. the higher paid ones don't. is it truly that just seems so blatant. isn't that obvious? >> it is. and as mentioned, there is powerful statistic evidence that strongly suggest there is systemic pattern, that the higher the paid physician by the nfl disability board, the higher that physicians rate of

denying benefits. you know, one example is, there is nfl highly plead neuropsychologist who has received over 850,000 from the nfl disability board, and this neuropsychologist across 29 different benefit evaluations has never found any of the players to qualify. so that is 100 percent denial rate. this is an aberration. there is an nfl disability board neurologist for example who's been paid over one point $4 million, and across 33 line of duty and camp evaluations, the physician once again has 100 percent denial rate. -- in the statistical sample, there has been 112 board paid physicians, and more than half of those have -- to qualify 14 p. >> so, let me play for, you eric, what roger goodall, the commissioner of the nfl said about this. >> you are always gonna have

people who may think they qualify for it, doctors disagree, the joint board disagrees, that is the way the system works. i would tell you, the benefits in the nfl are off the charts. >> what is your response? >> the benefits are off the charts. but, it is nearly impossible to get the benefits that are going to benefit these former players that need these to prove their quality of life. like, to think about some of these guys don't have insurance, because the nfl only provides five years insurance after you finish playing, and the nfl always talks about player safety, we care about our guys, better soon as you retire and you are downplaying, they do not care anymore, they just pretend like they do. >> sam, here is the nfl's statement, this is from the spokes person -- a disability plan which is established by the nfl a sport of the -- includes an uncapped financial commitment to provide benefits or any retired player that

means the eligibility requirements that by the parties. these eligibility requirements and procedures were developed after consultation with occupational and mental physical health experts. the plan annually provides more than $330 million to deserving players and their families, the nfl disability plan is fair, and administered by professional staff overseen by board comprised of an equal number of appointees of the nfl players association, and the lead which includes retired players. your response to that? >> the defendants here have repeatedly willfully and systematically breached their fiduciary duty of loyalty through hostile and adversarial positions, bad faith, active concealment, misrepresentations, and failing to act in the interest of disabled retired players and their beneficiaries. a clear example of this, the board's consistent misrepresentation of the fact

that all work hire physicians are neutral. an active concealment that many are in fact biased. and, the board members, committee members, they must review of facts and circumstances in the administrative report. and, despite their duty to do so as laid out in the plan, and as laid out by federal law, as well as the representations to applicants in such as eric. they were doing so, the committee and board members have testified recently that their practice is not to review all the evidence. instead, they engaged in a pattern of rubberstamp-ing the erroneous inclusions financially incentivized. >> so, eric, what he wanted this lawsuit? >> we just want them to fix this sham of a process give guys a fair chance to be

properly evaluated by a neutral physician. that is all we want. we want guys to be able to have the benefit they deserve, and we spent so many years playing through injuries and no when you come to your last resort and you are trying to prove the quality of life you apply for this disability, and then you come in and could have done your appointment over zoom call basically. >> well, eric smith, sam katz, thank you for your time tonight. thank you for explaining all of this. we will obviously be watching what happens with a case. really appreciate your time. >> thank you. >> and thanks everyone for watching. our coverage continues. safety systetem ever. ♪ ♪ one prilosec otc each morning blocks heartburn all day and all night.

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