and resiliency in this community. i know that they are going to rebuild because they have the spirit and the drive and the determination that is needed for a community like this to rebuild from such an unprecedented amount of decimation. >> that was texas governor greg abbott speaking in the wake of that tornado in perryton, texas. of course we wish all the residents of perryton all the very best in their efforts to rebuild that town. thank you so much for joining me today. i'm alex marquardt in for fredricka whitfield. smerconish starts right now. affirmative action on life support. i'm michael smerconish in philadelphia. monday america celebrates the third-ever federal holiday of

juneteenth, commemorating the emancipation of enslaved african americans, and as we do, the consensus among legal scholars is that the supreme court will soon be ending affirmative action, at least in the context of college administrations. does that mean that it achieved its purpose or that we're abandoning the underlying premise? a pair of cases have been argued. we will soon know the results. one involves harvard, the other the university of north carolina. the conventional wisdom is that race conscious administrations will end. currently race is permitted to be a factor in the administrations calculus, meaning one factor among many to be considered as schools seek to create a diverse student body for everybody's benefit. quotas on the other hand, are unconstitutional. that's the bottom line after the supreme court has taken up several major cases involving affirmative action over the years. and one of those cases was in 2003, it was grutter versus bollinger, involved the university of michigan law

school. justice sandra day o'connor wrote we expect 25 years from now the use of racial preferences will no longer be necessary. well, it's been 20 years. is it still needed and legally defensible? opponents of race conscious administrations argue that at schools like harvard asian americans are being discriminated against, where they often are scored lower on subjective personality traits. all sides seem to agree that without race as a factor in administrations, the percentage of black and hispanic students admitted will drop, white and asian american administrations will rise. that's what happened in california after proposition 209 was passed in 1996, which prohibited state governmental institutions from considering race or sex or ethnicity in the areas of public employment, public contracting and public education. at the university of california schools, the percentage of underrepresented groups declined. it remains to be seen just how expansive the reasoning of an opinion banning affirmative

action in college admissions might be. it could extend into the workforce. schools will likely respond with race neutral alternatives, such as administrations guarantees based on class rank or focus on socioeconomic diversity. the current debate has largely been driven by one man. he has a group called students for fair administrations. in the 2013 case of shelby county versus holder, he was behind the successful challenge to the voting rights act of 1965. there the court struck down as unconstitutional the formula about laws needing pre clearance baits on states' histories of discrimination in voting. the supreme court said it was based on data over 40 years old, making it in longer responsive to current needs. voting rights and affirmative action sprung from the same era. two months before he signed the voting rights act on june 4, 1965, president linden johnson delivered the commencement address at howard university.

it was an important speech. one remembered as establishing the intellectual framework for affirmative action. president johnson acknowledged the treatment of blacks from slav slavery to jim crow and he said this -- >> freedom is not enough. you do not wipe away the scars of centuries by saying now you are free to go wherever you want or do as you desire and choose the leaders you please. you do not take a person who for years has been hobbled by chains and liberate him, bringing up to the starting line of a race and then say, you are free to compete with all of the others, and still justly believe that you have been completely fair. thus, it is not enough just to

open the gates of opportunity. all our citizens must have the ability to walk through those gates. >> president johnson said that equal opportunity is essential, but that it's not enough. that men and women of all races are born with the same range of abilities but ability is not just a product of birth. 58 years later, we're still having the same debate. the south carolina senator tim scott announced his presidential campaign by reflecting on his own american story. >> we live in the land of opportunity. we live in the land where it is absolutely possible for a kid raised in poverty in a single-parent household, in a small apartment, to one day serve in the people's house, and

maybe even the white house. [ cheers and applause ] >> my colleague, david axelrod, asked his former because, former president barack obama, to react to senator scott's comments. >> if a republican who may even be sincere in saying i want us all to live together, doesn't have a plan for how do we address crippling generational poverty that is a consequence of hundreds of years of racism in this society and we need to do something about that, if that candidate is not willing to acknowledge that again and again we've seen discrimination in everything from job -- getting a job to buying a house, to how the criminal justice system operates, if they're not doing

that, then i think people are rightly skeptical. >> there are many statistics about african americans that confirm president obama's feelings that things are not equal. looking at education first, in 2021, 24.7% of blacks had a bo bachelor's degree or higher as compared to 38.3% of whites. quality of life, median income for the average black household was $48,297, for white house holds, nearly $78,000. 19.5% of blacks living at poverty level compared with 10% of whites. the life expectancies at birth for blacks, 70.8 years, 76.4 for whites. and homicide, the leading cause of death among black males 15 to 34, 20 times higher than their white counterparts. by those measures, we've still not wiped away the scars of centuries, as president johnson would have said. the gates of freedom have been

opened but some among us, namely many african americans, still not walking through those gates at the same pace as others. not all of the disparity attributable to the unforgivable crime against humanity represented by slavery, but surely remnants remain. there's the challenge, to salute the opportunity afforded to tim scott and barack obama, while not losing sight of others who look like them but are still behind. as i noted, this discussion happening just as we celebrate the recently reinstated federal holiday of juneteenth, the whole country taking a pause to honor the significance of emancipation of enslaved african americans. as president obama put it, how do we address crippling generational poverty that is the result of years of racism in our society? which brings me to this. i want to know what you think. go to snmerconish.com and answe this poll question.

is affirmative action necessary? joining me now, renu mukherjee, getting her ph.d. at boston college where her dissertation is on affirmative action. she wrote this piece in "the new york times," "affirmative action is wrong". thank you for being here. you heard the tape and you're familiar with the speech. president johnson said in 1965 it's not enough to open the gates of freedom. was he right then? >> he was right then, michael. affirmative action served a unique purpose in the mid to late 1960s and 1970s, which was to provide assistance to disadvantaged african americans as a result of the horrible legacies of slavery and jim crow. but that purpose is not necessarily being fulfilled today. when you look at the majority of black students at harvard, for example, they're largely the children of immigrants and they

are also typically middle and upper middle class, and so the purpose of affirmative action isn't really being sold anymore by an explicit preference based on race. >> you would like to see race conscious admissions done away with. i think you're about to get your wish when the supreme court issues its opinion or opinions. what will that next incoming class at harvard look like in comparison to what has been the status quo? >> it depends on if the supreme court still says that schools can pursue their interest in diversity. if they can, then i anticipate a lot of colleges and universities in america are going to turn to the race neutral alternative of an admissions based on low income status and in that case you would actually see white enrollment at harvard decline, combined african american and hispanic enrollment increase, asian american enrollment increase, and also socioeconomic diversity at harvard and other

elite schools skyrocket. >> renu, to cut to the chase, how do we do both? how do we continue to atone and make right the sins of slavery, as president johnson laid out, as the statistics i've shared make clear, and yet do something about what's happening with asian americans, who i think are clearly on the short end of the stick with superior academic performance and yet the subjective personality traits being held against them? can we do both? >> yeah, michael, i think we can do both. and i'll also point out that the supreme court has held remedying societal discrimination isn't actually a proper legal justification currently for affirmative action. it's really to increase diversity. so the way in which you can help disadvantaged black children and also help disadvantaged children of all races is to maybe measure -- provide a more accurate measure of disadvantage, which would probably be some sort of

admission based on income state or a top ten percent plan where you admit at a public state university the top ten percent of students in their graduating high school class. that would provide remedies for low income disadvantaged children, not just who are black, but all races, and alleviate the discrimination that asian american children are now subjected to in the admissions process. >> right. your reference to a class approach is often the model in texas. let's answer social media together. i'll read it aloud because i probably -- you probably don't have a screen on which to see it. affirmative action says jag served its purpose in the '70s and '80s, but now it is working against those it was to protect. i'm not sure, renu, how the viewer believes it's working against african americans, because i think they were the intended recipients. but go ahead and respond to that from your perspective. >> i think that that viewer is trying to get at my earlier

point, which is that those that now receive the admissions tip based on race at harvard and other elite schools are largely the children -- even if they're underrepresented minorities -- of african american immigrants, and they tend to come from middle and upper middle class status. whereas when affirmative action was instituted in the 1960s, it was to help the most disadvantaged in our society. which is why if you take a top ten percent plan or a tip based on socioeconomic status, that could help the intended beneficiaries way back when. >> i get the argument you're making, if you're talking about the son or the daughter of an african american couple where one or the other is a physician or one is an attorney, it hardly seems fair that there would be an advantage over a white applicant or an asian applicant whose mother or father works in the trades. i just don't know that that broad brush addresses the norm of what's going on out there.

in any event, i appreciate you being here. i know how you're going to vote on today's poll question. make sure you go and do it. okay? go to smerconish.com. today's poll question, we went through a whole variety of machinations. i said, let's make it simple. is safe necessary? that's the question, go vote at smerconish.com. still to come, now even the centrists are polarized. the group no labels working to nominate a third-party presidential candidate while rival group third way says that would just re-elect donald trump. how is that going to play out? and will special counsel jack smith's documents case against president trump hold up in court? several of the high-profile cases smith brought in the anticorruption unit ended with a mistrial or hung jury. the supreme court reversed the conviction of my next guest, former virginia governor bob mcdonald. plus, it's being called the greatest grift in american

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so how might jack smith's case, or perhaps cases against former president trump hold up at trial? between 2010 and 2015 smith led the doj's public integrity unit of about 30 prosecutors, investigating public corruption cases of politicians and others. among smith's more notable prosecutions, democratic senator and vice president candidate john edwards on campaign finance law violations over payoffs with the woman he had been having an affair and a face against robert menendez over gifts from a friendly. smith's team did secure a conviction against republican congressman rick renzi of arizona for extortion, bribery, insurance fraud, rack tiering. in 2021 president trump pardoned renzy. my next guest, bob mcdonald has a personal perspective on smith.

in 2014 he was charged with bribery, but the conviction was overturned unanimously by the supreme court. the case concerned mcdonald and his wife accepting more than $175,000 worth of loans and gifts from a businessman seeking the state's help in researching a dietary supplement. chief justice john roberts wrote the opinion and said the prosecution had taken a boundless interpretation of the statute about what constitutes an official act. the former governor of virginia bob mcdonald joins me now. so you, john edwards, john menendez, all failed prosecutions. what's the common denominator as it relates to smith? >> thanks for having me on. jack smith, harvard educated, tough prosecutor, decisive, but those five years during the time he was head of the public integrity section of the doj you just chronicled some of the cases with menendez and the

former vice presidential candidate, john edwards. also the lowest learner, he was giving advice to perhaps go after conservative groups for irs matters. my case, you know, michael, it's long in the past now. but we wrote a 38-page brief, we gave it to the government in advance telling them why their theory was wrong. briefs were filed by people like the former white house counsel for five u.s. presidents, from reagan to obama, 83 former attorneys general saying why this was wrong, and yet they persisted. so what i get out of that is i think he's been overzealous, he's willing to stretch the law. roberts call it a boundless interpretation that would catch politicians in ordinary acts that they do for people. and i think there's maybe a lack of judgment.

and that's the concern that i get out of my case and the others. >> well, then why do you think he was selected? >> well, merrick garland made the choice. he also brought in david harbach, one of his top people in this case. harbach was in the courtroom, gave the closing argument in my case and was also on the edwards case. again, there's some judgment questions there. i don't know what criteria he had to pick from. but on paper, he's been a good public service, but in the courtroom and judgment, he's had these failures. my case, $28 million of legal fees and three and a half years of great difficulty for my family, my staff. i just think he's willing to stretch the law. and here is the problem, michael. you know as a lawyer, the ethical rules are you're supposed to -- as a government attorney, a federal prosecutor, you're supposed to seek truth and justice, not merely to convict.

it's a very different ethical duty, and i think maybe that's been the downfall in some of these cases. he would rather win. >> and to state the obvious, two things can be true at the same time. that former president trump should not have retained the 31 documents that are not issue here and that jack smith is an overzealous prosecutor. none of this excuses trump's conduct. we should make that clear. >> yeah. no, listen, i agree. i'm not making a judgment on the facts. if they can prove, if smith and his team can prove that the evidence will support the allegations in this indictment, then i think mr. trump may have some criminal culpability. but having things tried in the press, it's never fair. there's always a spin. the law is not clear. and so we're going to have to see how this plays out in the courtroom. because one of the sides is going to be really embarrassed when it comes to evidence. >> to your case, chief justice

roberts wrote the opinion, it was unanimous, and i'm going to put it on the screen and read one paragraph for the audience. there's no doubt that this case is distasteful. it may be worse than that. but our concern is not the tales of ferraris, rolexes and ball games, it is the government's boundless interpretation of the federal bribery statute, a more limited interpretation of the term official act leaves am bol room for prosecuting corruption. obviously merrick garland, the attorney general knew when appointing jag smith that the supreme court had kind of spanked him as it relates to your case, but he selected him nonetheless. why do you think? >> boy, you know, michael, that's a question for merrick garland. i hate to pass on that, other than the fact that he's got, again, tremendous experience, making decisive -- taking

decisive action on high-profile cases and tough enough to stand up against the president of the united states in the courtroom in an historic indictment. that would be my best guess. but he had to know he would subject himself to immense scrutiny, based on bipartisan mistakes, going after both democrat and in my case a republican person, and getting unanimously revoked. he got the law unanimously wrong in my case. so i question mr. garland's judgment in this pick knowing he was going to get this kind of -- >> and the prosecution of so-called public corruption all across the country. i'm going to put on the screen a social media reaction that just came in. go ahead, let's see what it says. potus 47, aka potus 47, aka donald trump, will not need to pardon himself. let that sink in. governor, quick question for you. what's the prospect that whomever is potus 47, donald trump, biden, kamala harris, ron

desantis, pardons donald trump? do you think this ends with a jerry ford-like move? >> of course that presumes he would be convicted. michael, my concern is we have weaponized the criminal justice system. i think both parties have done it. you know, the rule of law is much more important than any person or one president that might be elected. that's my broader concern, is when you do things as in my case getting the law wrong for whatever your motivations might be, you undermine the basic tenet of american civilization, which is the rule of law. no one is above the law, but everyone is treated fairly under the law. so i think that there might be -- if he's convicted, there very well may be, because of the reaction to that conviction, there very well may be an act by a future president to do, as you said, what ford did, and create peace in our nation, to have a pardon. that's a long way down the road. we have to see what happens. what's the real evidence, not in the press, but in the courtroom?

>> well, pretty compelling, that speaking indictment laid out a hell of a case. we'll see how the former president defends himself. thank you. appreciate you being here. make sure you're voting at smerconish.com. is affirmative action necessary? y juneteenth is on monday. where are we? supreme court is about to say, we think, that affirmative action race-conscious admissions are unlawful. so where are we? is it necessary still? up ahead, there's a battle over where it's bad for the country to have a third-party presidential candidate in 2024. you might remember, i recently interviewed ryan clancy here, the chief strategist of no labels. that's the group that is trying to get on the ballot in enough states to actually win. well, today equal time to the c co-founder of third way, which recently held a strategy meeting in washington with democratic advisers and former senators on how to stop no labels. plus, as much as $280 billion of

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your kohler® walk-in bath. and take advantage of our low monthly payment financing. now it's the centrists who are at war. the "washington post" reports last week there was a high-powered meeting at a dc think tank aimed at shutting down a third-party presidential candidacy for 2024. in attendance prominent strategists, including advisers to president biden like ron crain, claire mccaskill and republicans from the linking project like bill crystal. their mission was to figure out how to best subvert a third-party presidential bid by the group no labels, an effort they all agreed risked undermining biden's re-election campaign and re-electing former president donald trump to the

white house. the event was hosted by another third-party group, the third way, whose co-founder will join me in a moment, which has been leading the charge to stop no labels, this despite the fact that america has been showing little enthusiasm for a rematch between presidents biden and trump and polls show more americans identifying as i rather than r or d. former reagan speech writer peggy noonan wrote in the "wall street journal" if the race is indeed a trump/biden rematch, a third-party slate will certainly end the race and, quote, if a few crucial things happen, if they put forward a solid ticket, not brilliant but solid, political veterans, who people think could do the job, they would have an even or better than even chance of surprising history by winning. no labels makes things complicated by saying it would

end its campaign if the gop nominee is desantis or anyone not named trump, because research shows they wouldn't be able to attract enough dissatisfied republicans to make the can't viable. nor would they run if polls show that biden is way ahead of trump next spring. but how could anybody definitively know that given the unreliability of our polling? join to discuss the matt bennett, the co-founder of third way, who served as deputy assistant for governmental affairs. you've seen the polling data. 66% say that it would be a disaster for joe biden to be re-elected, 56% say the same thing about donald trump. so what's wrong with giving choice to the majority who don't want either of them? >> well, the problem is that what no labels is offering is solution and not choice. what they're going to do if they

run a third-party candidate is offer a spoiler, somebody who can maybe attract protest votes, people who are truly by the time we get to november of next year, unable to pull the lever for either candidate, and there's enough to make a difference in the race. we saw that in 2016 where in critical states 6% to 8% of the population voted for others. what they're not going to provide is a path to victory like noonan is claiming. that's ridiculous. there's almost no one who is a serious political observer who thinks that is remotely possible. they are very unlikely to win a single state. no candidate has done that since 1968 as a third party, and they certainly aren't going to win 270 electoral votes. >> how could you know that? respectfully, how could you know that if you don't know the identity of the third-party ticket we're talking about? >> first of all, there's

history. one of the most popular presidents in american history, four years after leaving office, ran as a third-party candidate, roosevelt, and he didn't come close to winning. he was a spoiler for his republican party but he didn't win. if you add up all the electoral votes, the third-party candidates have won in the period since roosevelt, that doesn't get you to 270 votes. there's no way. there have been credible third-party candidates on the ballot in recent history, ross perot in 1992 and 1996, but he didn't win a single state, and no one has except for guys running as overt racists in the '50s and '60s. so this isn't going to happen. what happens is even though there are a lot of independents and a lot of grumpy people who would like a third choice, in the end they go back to their parties and that's why we have these very close presidential races. >> matt, i hear from many, and on your website i know that you have david brooks' recent take

on this posted at the thirdaway.org website and i read his piece. i've heard this from others. it's the idea of people who say conceptually i like the idea that americans ought to have more choice, but not this cycle. to which i respond and say, wait a minute, this is the perfect cycle where a majority of americans say, please don't saddle me with either of these guys. maybe this is the breakthrough year. >> it isn't. if you look back at the numbers on incumbent presidents in recent history, the ones who got re-elected, bill clinton, barack obama, they were all polling in the low 40s at this point in the cycle and people were dissatisfied. because american voters tend to be kind of grumpy. but what happens as we get close to the election is that members of their party, democrats or republicans, go back to their base. yes, there are a lot of independents out there, but only about 7% of the electorate are

true swing voters, which is to say they would and do vote for either party. for the most part, those independents either vote almost all the time for the ds or rs. however, there would be enough of those people if a third-party candidate is on the ballot to swing the election, and data shows that it would swing the election to trump. and that's a risk we believe america can't take. >> i'm limited on time. quick final answer if you don't mind. if the polling was showing that a third-party candidate was polling equally from biden and trump, would you feel differently? >> no, because i wouldn't believe that polling. polling has been pretty inaccurate in close presidential races. >> wait a minute. why can't i say the same thing about the polling you've been referencing? i can't believe that because that must be inaccurate. >> i'm not referencing polling, i'm referencing history and what happened in actual elections in 2016 and 2020. look, in these very close races,

polling can't get it that accurate. but what we do know is that it is overwhelmingly likely that more people are reluctant biden voters than reluctant trump voters, and if you give them an option they may take it and that is an enormous concern. >> i appreciate you being here very much. my simple rebuttal is that the only thing we know for sure is we have no idea. there's never been a cycle like this and the twists and turns about to come our way, nobody can predict. i appreciate it, though. thank you. >> thank you. social media reaction, what do we have on this subject? a lot of interest, i know. if it's biden and trump, yes, and polling has confirmed this, the situation has never been more ripe for more labels. the question is, who is that candidate? look, he says he's not interested, he's going to be upset with me for even floating his name. but are you telling me that if an admiral william mcraven decided that he were willing to

be drafted by his country to serve that you could today, mid-june of 2023, say, well, that could never work? because i can't accept that opinion. i just can't accept that opinion. i believe the polls that say the majority of americans don't want either of the two who are right now leading their tickets. i want to remind you to answer -- don't take it out on me. it was a question i was asked. i was speaking honestly. go to smerconish.com and answer this very simple and yet so complicated, is affirmative action necessary? still to come, it's the greatest theft in american history. how thousands of everyday american were able to steal billions of government money under the guise of covid-19 relief.

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u.s. history. billions stolen from the u.s. government not just by life-long criminals, but everyday americans. i'm talking about the federal covid-19 relief aid intended to cushion the most devastating pandemic in a century. according to the "associated press," fraudsters may have stolen more than $280 billion in covid-19 relief funding. most of the theft was obvious and simply done, at least in retrospect. in georgia a u.s. soldier awaits sentencing after admitting to stealing millions of dollars from the federal program after she illegally submitted more than 150 payment protection program loan applications. a pastor in florida went on the run after receiving more than $8 million from the government's covid relief program for small businesses and nonprofits. his family filed paperwork falsely claiming their ministry had over 400 employees and a monthly payroll of $2 million. in california, a couple convicted after stealing more than $18 million in covid relief

to purchase homes, expensive furniture and other valuables, alone they read like one-offs, a successful heist by an opportunistic criminal. but these are not isolated cases. to date, the u.s. government has already charged more than 2,000 defendants with pandemic-related fraud and are still investigating thousands more. the united states justice department's acting director for covid-19 fraud enforcement calls it an unprecedented amount of fraud. how could such enormous amounts of fundings be divvied out unnoticed? investigators are attributing it to the government's eagerness to provide quick relief. money was dished out to americans struggling to make ends meet, but it lacked oversight and not nearly enough restrictions on who would apply. in short, the con was all too easy. joining me to discuss is richard l lardner, an investigative reporter for the "associated press" where he wrote "the b

grift". richard, round numbers, how much money was pumped out and what percentage is believed to have been stolen or wasted? >> well, congress appropriated about $5.2 trillion and the president approved those bills. about the accounting that we have from the pandemic response accountability committee, it says $4.2 trillion of that has been spent, some of this money has a longer tail to spend. those numbers will be updated. but it's over $5 trillion in total that's been appropriated for covid relief. >> is it a reflection of economies of scale? and by that i mean, you write there was an $837 billion irs program that had 99% success in its delivery. that sounds pretty darn impressive. but that 1% fail was $8 billion. >> yeah, i do think, you know,

as we went through these numbers, you can sort of become a little numb. some of these programs are so large, hundreds of billions of dollars. still to us, and i think to most people, $8 billion is a lot of money. nothing is ever going to be perfect in a massive emergency aid program like this one. but, still, we shouldn't lose sight of large sums of money and sort of what they mean. >> how aggressive are the government efforts now to recoup those funds and to continue prosecuting cases? >> i think they're very aggressive. there are three strike forces that were created to go specifically after covid fraud. the biden administration wants to triple that number. this is keeping federal prosecutors, investigators and inspectors general very busy, and will for some time. the statute of limitations on

crimes related to the two large sba programs, paycheck protection and the covid emergency -- or economic emergency disaster loan program, have been extended from five to ten years. there's also a push to do that same statute of limitations extension for crimes related to unemployment assistance fraud. >> you know, i had this conversation on radio, and one of my callers said to me -- not that anyone defends the waste, fraud and abuse, but that the fire hose needed to be opened to keep the economy afloat and that this was one of the likely ramifications that was going to take place. quick thought from you? >> well, i think that's right. i mean, this was a moment where businesses were shutting down, people were out of work, economies were in free fall and washington responded aggressively. and they wanted the money out

fast, so the standard safeguards that normally protect federal money from going to the wrong people were lowered. but i think it's important that -- it takes people on the other side. there were people who took advantage of that during a public health crisis. >> sure. horrible. >> they saw an opportunity for an easy payday and they grabbed it. >> yep. horrible. by the way, congrats to you and your colleagues. i'm so glad you're on this case because it needs more attention. so thank you. >> thank you. >> i do not know that it was this pandemic response because of what we just shared with you. it is appalling, absolutely,

but you think you need to sustain the economy. i am not defending anyone. who among us is going to capitalize on a public health crisis? still to come, the best and worst social media comments and have you voted yet? go to smerconish.com and register for the daily newsletter and answer this question. is affirmative action necessary ? for more breakthroughs like that... ...i need a breakthrough card... like ours! with 2.5% cash back on purchases of $5,000 or more... plus unlimited 2% cash back on all other purchases! and with greater spending potential, sam can keep making smart ideas... ...a brilliant reality! the ink business premier card from chase for business. make more of what's yours.

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