good morning. it's just about 9:30 a.m. eastern. i'm ana cabrera coming on early to bring you breaking news out of washington. donald trump arriving just moments ago at a federal courthouse in our nation's capital where an appeals court is about to hear arguments on whether trump is immune from prosecution involving his efforts to overturn the 2020 election results. this will be the first time we get a live broadcast transmission of arguments while the former president is actually in court, but we will only be able to hear what's happening. the court is allowing audio only. also in the courtroom will be attorneys for special counsel jack smith arguing there is no broad immunity protecting presidents from being prosecuted for crimes committed while in office. we're joined by nbc's ken dilanian outside the courthouse

along with analysts chuck rosenberg and lisa rubin. what can we expect based on arguments put forward in advance by both sides? >> reporter: to set the scene, because donald trump is here in person the security has really been ramped up. there's a much greater police presence. in terms of in the courtroom, this is a long shot for donald trump, this idea that a former president can't be prosecuted for any acts whited while serving in offense, it's belied by the fact that gerald ford pardoned richard nixon.

this three-judge panel is an all-female panel with two judges appointed by president biden and one appointed by former president george h.w. bush. in addition to arguing immunity, trump lawyers are also making the argument that this produce is improper under double jeopardy. >> ken, i need to interrupt you because the hearing is starting. let's listen in right now. >> our jurisdiction was challenged by an amicus. you are not questioning our collateral order jurisdiction? [indiscernible] >> also, you have either abandoned or not made the fifth

amendment double jeopardy argument before us. >> we framed the double jeopardy argument as arising from the impeachment judgment clause. that incorporates principles of double jeopardy, but we haven't set a straight forward double jeopardy clause in this court. >> before that occurs, i do want to speak a little bit more about jurisdiction, because we still have to satisfy ourselves that we have the jurisdiction. even though you believe there's interlocutory jurisdiction with respect to the collateral order doctrine, how do you place that with your jurisdiction needs to stem from the constitution or be explicit in statutory law? >> we have three responses to that. one is if you look at the

language of midlands a quality, what justice scalia is discussing in that case is particularly a situation where the right is won, the legal and practical value of which would be destroyed. >> that has to deal with explicitly stating that because we don't have an explicit communication here with respect to anything in the constitutional statute. >> i respectfully disagree with that. it's reenforced by it specifically refers to trial. the remedy is dismissal of an indictment. we have the clearest right to trial of any of the causes in which the supreme court has found interlocutory

jurisdiction. >> on the issue of immunity, midland at fault still applies, that's what you're making your distinction. >> right. it says most separation of powers claims may not be subject to interlocutory view, but there are some that may. it expressly contemplates interlocutory jurisdiction in this claim. in situations where the court said, look, there's a speech and debate claim and another claim that is closely akin to such a claim. >> again, about explicit, because in the double jeopardy trial scenario you have twice put in jeopardy, so you cannot be tried again in that regard. then in the speech and debate,

it says shall not be questioned. so the language was explicit by they're not giving any negative that says explicitly what you cite. [indiscernible] [indiscernible] also point out that this court in rose, it has to say this is a right. it's that the right once formulated has to include the right not to be tried. that's why the language that's previously at midland asphalt is heavily emphasized by justice scalia where the right is interlock tear pap peel and it

has not been negated before trial. there's similar language. [indiscernible] >> referred to the midlands asphalt as a suggestion -- >> i'm not aware of that. >> -- equipment. >> i think that's an excellent point. that's reenforced by -- turning to merits, to authorize the prosecution of a president for his official acts would open a pandora's box from which this nation may never recover. could george w. bush be prosecuted for obstruction of an official proceeding? could president obama be charged

with murder for allegedly authorizing drone strikes? >> i understand your position to be that a president is immune from criminal prosecution for any official act that he takes as president even if that action is taken for an unawful or unconstitutional purpose, is that correct? >> with an important exception that in a proceeding that reflects widespread political consensus, that would authorize the prosecution. >> it seems to me there are a lot of thins that might not go through that process, because it's quite a cumbersome process. in your view, could a president

sell pardons or sell military secrets? those are official acts, right? it's an official act to grant a pardon. it's an official act to communicate with a former government. such a president would not be charged? [indiscernible] >> the doj decided not to prosecute bill clinton with that. >> your position is that he can't be prosecuted for that. >> as long as it's an official act. purely private contact you'd be subject to prosecution for that. >> could a president order seal team six to assassinate a political rival? that's an official act. >> he would have to be impeached

and convicted before the criminal prosecution. >> but if he weren't there would be no criminal liability for that? [indiscernible] what the founders were concerned about -- >> i asked you a yes or no question. could a president who ordered seal team six to assassinate a political rival who was not impeached be the subject of criminal prosecution? >> if he were impreached -- in these exceptional cases, you'd expect a speedy impeachment and conviction. what the founders were much more worried about than using a

federal prosecution on presidents is the abuse of the criminal process for political purposes to disable the presidency from factions and political opponents. that's exactly what we see in this case. >> i've asked you a series of hypotheticals about criminal actions that could be taken by a president and could be considered official acts and asked you would such a president be subject to criminal prosecution. your answer is no. >> i said qualified yes if he's impeached and convicted first. >> so he's not impeached or convicted. put that aside. you're saying could steal political secrets of a political rival. >> the sale of pardons has come up historically and was not

prosecuted. >> your brief says communicating with an executive branch agency is an official act and communicating with a foreign government is an official act. that's what presidents do. [indiscernible] >> the presence of official acts are never examiable by the courts. >> your position is, as i understand it, if a president is impeached and convicted by congress, that he is suggest to criminal prosecution, correct? [indiscernible] >> is that a yes? >> yes. >> okay. so therefore, he's not completely and absolutely

immune, because you concede he can be prosecuted if there's an impeachment and conviction by the senate. [indiscernible] >> but you're conceding presidents can be criminally prosecuted under certain circumstances. >> typically if they're impeached and convicted. >> isn't that also a concession that a president can be criminally prosecuted for an official act, because presidents can be impeached for official acts. >> under those unique circumstances. >> given that you're conceding that presidents can be criminally prosecuted under certain circumstances, doesn't that narrow the issues before us to can a president be prosecuted without first being impeached and convicted.

all of your other arguments seem to fall away, your separation of powers argument, if you concede that a president can be criminally prosecuted under some circumstances. >> the constitution in the article 2, section 1 clause has -- chief justice marshall says article 3, lack of jurisdiction to engage in examination of the president's official acts. >> -- can do so if you impeached and convicted. >> the problem for the separation of powers, the constitution does that in many other situations where it engaged in a balancing. what the framers were most concerned about was not the notion that presidents would ever be prosecuted for things. they set up separation of powers and created a very narrow

exception. >> once you concede there's not this absolute immunity that the judiciaries can hear criminal prosecutions under any circumstances, we are saying there's one specific circumstance. that means there isn't this absolute immunity that you claim. >> i'm not aware of any case or constitutional doctrine that creates a very narrow exception and therefore it makes the principle vanish. >> that's not what i'm asking you. i'm saying that you're coming before us and saying there is this absolute immunity that -- separation of powers that the judiciary can never sit in judgment on what the president is doing, but you're conceding that's not true because under some circumstances the judiciary can do that.

[indiscernible] >> there's a narrow exception for conviction -- >> i understand that. it seems to me that once you concede that presidents can be prosecuted under some circumstances, your separation of powers argument falls away and the issues before us are narrowed to are you correct in your exception of the impeachment judgment clause? does the clause actually say what you say it does? >> i respectfully disagree with that. there was a strong principle. it's reenforced by chief justice marshall. he didn't say we can never sit in judgment over a president's official acts. he said they are never examinable by the courts. >> so answering the larger question about whether there's presidential immunity from criminal produce for official

acts, or are we looking for a standard on a motion to dismiss to take those as true. [indiscernible] >> -- no such thing as criminal immunity for a former president. we have strong arguments on both of those things. the notion criminal immunity for a president doesn't exist. it would allow the indictment of president biden in western texas after he leaves office for mismanaging the border and let a texas judge sit in judgment over the validity -- >> when there were pardons or people were not prosecuted, not everybody goes through an impeachment proceeding before they get prosecuted. >> only for subordinate officers. the founders, the framers

actually in the constitutional convention clearly contemplated that sequence that i've described would be mantory. he would have to be impeached -- >> but impeachment is only with certain crimes. >> high crimes and misdemeanors basically cover anything that the u.s. senate makes a political judgment justifies removing him from office. >> -- is impartial, does not make political judgment. >> that has no basis in the context of the current prosecution where the current president is prosecuted -- >> from the standpoint of what the impeachment judgment clause is designed to do, that it limits itself to certain acts and then therefore if convicted

thereafter could be the prosecution. but not everybody has to go through that process. prosecutors later on can come into information and evidence after they've investigated to make their determinations about what they'd like to criminally prosecute. >> whatever the practice is evidence from the founding generation is clear that you can't do that with respect to -- the uniqueness of the presidency and the person who occupies the office of the presidency. it's reaffirmed about the unique nature of that particular office. >> even under clinton where there's a bill cut under president nixon where there's a

pardon given, there's an assumption that you could be prosecuted, because why enter into those specific acts? >> the stuff that president clinton cut an indictment deal about by admitting to certain wrongdoing was purely private conduct. it's a question to can you be indicted for official acts. you refer to the pardon of president nixon. president nixon was accused of a wide range of purely private conduct. >> if we go to the indictment, they are alleging this is private conduct subject to fraud, not official they're not alleging purely -- they're alleging this is private conduct. subject to fraud. not official acts. so why don't you speak to that since you said we have to look at the broader question as well as the indictment. >> yes, your honor.

the allegation to the indictment -- official acts, wouldn't characterize them as private acts as to the alleged motive or purpose for that. their whole theory, their characterization of the language in the indictment is we're alleging purely private conduct as was engaged in for particular purposes and that's foreclosed by a very long and strong line of supreme court -- >> the case here, that we -- this circuit distinguish office seeker in or office holder in how you characterize the acts. >> going back to marbury against madison, the nature of the act itself, i understand the opinion to reinforce that by saying it is an objective. they use the word objective multiple times, objective context specific assessment. it does not turn on the purpose or motive. this court properly rejected. that's consistent with nixon against fitzgerald, bradley against fisher, spalding against

loss, it is the strongest -- >> i'll turn to my colleagues, i've taken up my time, we'll give you what you need. with respect to the actual indictment, it does not gloss over what, you know, put it in terms as you're describing. so if we look at the face of the indictment as to what is charged, when it is gone through a grand jury process, unlike the impeachment judgment clause, how do we look at those particular acts as described? we have to take those at face value. >> it is clear nixon against fitzgerald, the allegation was president nixon had unlawfully terminated whistle-blower and that whistle-blower comes to court and says this is not the subject to immunity because it was unlawful and the court said we're not looking at that granular level of detail and not considering most importantly the alleged motive for these acts. it said that the level of specificity to consider it is conducting the business of the air force. similar here if you look at the indictment, there is five

classes of conduct alleged, many of which are obviously official conduct. meeting with the u.s. department of justice about who should be the cabinet level officer running that is at the -- >> you said many of which -- >> all of which. one exception because there is's one allegation about the ellipse speech. you look at others, president trump's tweets, the second circuit held it was based on overwhelming -- that's an official channel, twitter account during the presidency was an official channel of government communication and under the objective test all those are obviously immune. so with meetings with the department of justice, meetings with the department of congress, that falls within the heartland of article 2, section 3, which authorized the president to communicate with congress about the matters that he views as expedient. >> let me ask you, first of all -- i don't believe you are counseled in, but what about the two concessions made in the

first impeachment proceeding and then in trump v. vance that impeachment should be stayed, and wait until he's out of office when he would be subject to criminal liability. >> as to trump against vance, purely private conduct, that involved a subpoena, criminal subpoena for tax records that long predated president trump's time in office. so it was purely private conduct, a concession that he could be subject to prosecution is also correct. as for the impeachment brief that they cited in their briefs, what that says is we have a judicial process in this country, period. we have investigative process in this country to which no-no officer can be immune. >> i'm sorry. there is a quote in the congressional record in which your counsel, i'm sorry, your client said through counsel, no former office holder is immune from investigation and prosecution. >> investigation is what --

>> and prosecution. >> well, that may be true subordinate officers, but the principle officer, the president is immune unless he's impeached and then it comes back to -- >> he was president at the time and his position was that no former office holder is immune. and in fact, the argument was there is no need to go for impeachment because we have this back stop, which is criminal prosecution, and it seems that many senators relied on that in voting to acquit. >> -- speculation, statement -- i think the court, i think lacks the ability to intuit what senator -- what motivated senators' votes in an impeachment process. >> the question that judge henderson is asking you was you took the position or your client did during the impeachment proceedings that there would be an option for criminal prosecution later and it is in the congressional record and i guess the question is what has

changed or why have you changed your position? >> to agree with that characterization of the statements in the congressional record, i think there was a distinction between the investigative process that was in the quote i just read. in addition to that, whatever concession may or may not have been made there would not have the effect in this proceeding. these are different proceedings. again, so, again, the notion that no one is immune from the judicial process and the judicial process should go forward is fully consistent with the notion that defense isn't quoting presidential immunity, which in the separation of powers we could raise in those processes. the notion there could be a criminal process and then defenses like this could be raised in that process is i think pretty straightforward. there is no concession that there is no such thing as criminal immunity, no concession in those proceedings that what the district court in this case did that can an astonishing holding that no president is criminally immune from prosecution is just -- i think it is not there in the congressional record. >> let me go back to marbury

versus madison and you isolated that one sentence. isn't it true that the progeny of marbury versus madison distinguished between discretionary official acts and ministerial by which they mean imposed by law, and that is the latter one in which he can be held liable and i want you to address both u.s. v. johnson and the commonwealth of virginia, because the first one deals with the speech and debate clause. and the supreme court said in essence, lock off all the evidence dealing with speech and debate, he can still be prosecuted, that congressman, for i think it was conspiracy to defraud the u.s. and then in the commonwealth of

virginia, you had the judge who had been charged with a crime under which you could not discriminate in picking juries based on race. and my reading of that case is that the language that you isolate in your reply brief, that it could just as easily be done, that is the choosing of the jury, a ministerial act, by someone on the street, to me that means when you have a duty that is imposed by law, picking a jury, they said was ministerial, imposed by law. whether you are the man on the street, whether you're the president, whether in that case you're the judge, who can be held criminally liable. and that's how i -- that's how i read, if not marbury, the progeny that is you can't stop

an official act. you have to say was it discretionary official act or was it a ministerial? >> i agree with that characterization of marbury. i think that is present in marbury itself. i think what i respond to that is that extension has never been extended up to the president and for good reason because for over 200 years the courts have said we can't sit in judgment over the president's official acts under any circumstances. for example, mississippi -- >> not criminally. we don't have any criminal reason. >> that's right. it has never arisen until this case. that's correct. if you look at every civil context, judge marshall says it is never examinable. no judicial proceeding where you can say the president did this and we'll sit in judgment directly over that. that's reinforced by mississippi v. johnson where the courts hold that we can't enjoin or enter a declaratory judgment against the president for his official acts.

the distinction between ministerial and discretionary has been held totally with respect to subordinate officers and that goes all the way back to marbury. if you look at the indictment in this case, nothing against president trump could be described as remotely ministerial and i don't know if the government argued that, if you're talking about responding to widespread allegations of fraud and abuse and misfeasance in a presidential election, trying to find out how to respond to that, in the national interest. even if that distinction goes up to the -- it wouldn't stay in the indictment here. >> why isn't it -- his constitutional duty to take care that the laws be faithfully executed requires him to follow those laws. every one of them. >> i mean, nothing -- i would say the take care clause, carrying out one's duty in the take care clause are inherently discretionary. example of ministerial act in marbury against madison is like

delivering a seal when requested because there is a separate statute. what they emphasize is there is a separate statute. the secretary of state had two hats on. on one hand a direct agent of the president and that cannot be examined by the courts. on the other hand, the original statute imposed purely ministerial duties that had to do with record keeping and delivering documents, a land deed that has a seal on it and a person asks for it, no discretion at all. when you're talking about the take care clause there is no statute that could impose on the president a mandatory duty to engage. the notion that when the president is meeting with the department of justice, saying, hey, we should investigate and enforce federal fraud statutes, the notion of that is ministerial strikes me as insupportable. >> i think you're missing what i'm asking, which is i think it is paradoxical to say that his

constitutional duty to take care of the laws be faithfully executed allows him to violate criminal laws. we have to assume the laws are true. >> my response to that, i think would be to emphasize what chief justice marshall said in marbury, they can never be examinable by courts. that's in a criminal proceeding. >> i thought you agreed with me we have gotten beyond marbury in the sense that official acts has been subdivided into discretionary and duty bound or ministerial. and in the ministerial or duty bound, at least with respect to legislators and judges, they have been permanently held criminally liable.

and that's in the face at least with respect to the legislators of an explicit constitutional privilege. >> i don't view united states against johnson ex parte as resting on the ministerial versus discretionary distinction. what johnson says, it doesn't say hey when you were doing these other things, they were ministerial, what it says is these were not legislative acts. to draw the distinction between legislative and nonlegislative acts, i think that's the right reading of ex parte virginia. they say judicial act. the argument of picking a jury, i don't believe they use the word to my recollection ministerial, they say -- >> because they were -- picking the jury based on race is a criminal act. and whatever johnson did, i think it was the very same statute, fraud against the united states, that is before us today. >> i would say the distinction in those cases is between in the judicial case johnson -- sorry legislative -- the legislative

case johnson is between legislative acts and nonlegislative acts. the distinction in ex parte virginia is between judicial acts and nonjudicial acts. that phrase is used in here, the distinction is between presidential acts and nonpresidential acts and everything that is alleged in the indictment is a presidential act. your honor -- go ahead. >> may i? there are a number of precedents or cases in which the supreme court has reviewed actions by the president. the case of youngstown by the supreme court reviewed harry truman's seizure of the steel mills during the korean war. there is the case of little buream where chief justice marshall reviewed the actions of president adams when he seized certain vessels. how does that square with your

position that judiciary can never review executive action? >> all those cases fall squarely within the well established exception and ex parte young where the judiciary is allowed and does frequently issue declaratory judgments and judgments against subordinate officers -- >> these are presidents. harry truman was the president when he seized the steel mill. how does that comport with your theory? >> that case was an injunction against the secretary of -- not against the president. this court reaffirmed recently you cannot enter strongly indicates that the court -- >> we can review presidential action if on paper they direct their judgment to a subordinate officer. is that what you're saying? these are presidential actions. >> the court can definitely enjoin the actions of subordinate officers that violate the constitution that is ex parte young. >> i'm asking you a different

question. these are presidential decisions, presidential acts and you're saying the court can review presidential actions as long as when they issue the judgment, they issue it to a subordinate. >> can't directly sit in judgment -- established over 200 years. >> you're using the impeachment judgment clause essentially as a negative implication with respect to the civilian officer or president, of course, has to be impeached and convicted and then nevertheless there after. there is an acquittal, how do you use it in that regard, because sometimes particularly in this case the acquittal can rise from lack of jurisdiction, not trying theit the case. >> the impeachment judgment clause does distinguish between those. merit related acquittals. the same sort of thing comes up in just criminal prosecutions under the double jeopardy clause where a determination that the defendant is acquitted does not

necessarily reflect an actual determination that they're not factually guilty. this is emphasized in the olc memo they addressed, that determination often reflects thing distinct from the merits. >> and one of the -- indicated that jack smith is improperly appointed. do you have a position there? >> very persuasive brief, but we have not raised it in this case. it raises powerful questions. but haven't raised in this case at this time. >> let me ask you about the effect of -- if we say we can't determine if these acts are official or private, i want to stay away from that, i'll say ministerial or discretionary, and characterized in terms of

office seeker versus office holder. what is your position would we have to remand it? would the district judge to decide in the first instance whether these various -- the four points that the defense has made against imposing criminal liability hinge on whether the acts are ministerial, discretionary, official, private, or however you want to characterize it? >> i would use the phrase clinton against jones, purely private conduct is what can be subject to judicial process after a president leaves office. in response to your question, our principle position is you can look at this indictment and it alleges official acts and it can be dismissed. we acknowledge the district court didn't reach that issue and the court has the discretion to remand to the district court for the application of the doctrine of criminal immunity in the first instance and we admit that would be a natural thing

for the court do. >> to the specific acts. >> yes. if the court holds there is presidential immunity, which it should, then remand to the district court to say, okay, go through the indictment and hold factual findings to find out how it applies to the conduct in this case. the court has the discretion to do that and that would be a natural course. if there are no further questions -- >> i have one more question. under the framework established in -- discussed in nixon versus fitzgerald, we're supposed to conduct a balancing test where we balance the need for the asserted immunity versus other public interests. and i see you as trying to represent a need for tecutive t to facilitate executive functions. the ability to act without hesitation, to be fearless, to make decision-making with -- to make decisions without being inhibited by the fear of

criminal prosecution. but it seems to me that there are some other article 2 interests here that are counterveiling. for example, under the -- under article 2, there is an executive vesting clause. there is an interest of the executive branch as an institution to have constitutional executive power vest in a newly elected president. there is also an executive interest as an institution in law enforcement, in enforcing criminal laws. and so it seems to me if we're weighing executive interests versus public interests, public interests and things like the integrity of an election, that president trump's position is not fully aligned with the institutional interests of executive branch. and in this balancing test that weakens the executive power that

he's trying to assert. >> i say three things in response to that, first of all, nixon against fitzgerald emphasizes the most compelling consideration one considers what describes as policy considerations rooted in the separation of powers is the rendering of the executive branch official unduly cautious, unduly cautious, in decisions that come up all the time. if a president has to look over his shoulder or her shoulder every time he or she has to make a controversial decision or after i leave office, am i going to jail for this, will my political opponents take power, that dampens the ability of the president to -- >> i understand that's your position, but i'm asking you, what about other article 2 interests? that's one interest. but there are other article 2 interests in play here too, and they seem to be counterveiling. the interest in executive vesting, the interest in law enforcement, those are also executive branch interests. and how should that affect the analysis. >> to the extent the court

reaches the balancing of policy considerations, those are decisively outweighed by the sort of republic shattering consequences of subjecting our chief executives in an endless cycle to prosecution once they leave office. the founders were very much against that, they were deeply concerned with that, you see that in hamilton's writings in federal 65, 69 and 77, and in federalist 47, and that is the original meaning of the constitution. >> i think we should -- it just occurred to me, do you think we should take any cognizance of the fact that when they wrote that, george washington was the president? very, very strong executive, the congress was brand-new, the -- everything else was brand-new.

and things have balanced out. we have got a strong congress. we have got a strong judiciary. and we have got a strong president. >> i think that if you look at the writings, the founders, they were looking past the presidency of george washington, an iconic figure, looking past the presidency of george washington, to the future presidencies and correctly anticipated the nation might -- deeply concerned about the nation would devolve into factions, factionalism did not govern the presidency of george washington because of his moral authority. however, immediately when you got to adams and jefferson, you devolved into factions. they correctly anticipated and were looking past that presidency to the future of the republic, a tradition that stood for 234 years until last year when it was shattered by the indictment of president trump. if the court has no further questions, we could ask the court to reverse and if the court rules against us in any respect, we renew our request to the court, stay as mandate to allow us to seek further review

en banc and with the supreme court. >> thank you, your honor. >> okay. mr. pierce. >> good morning. may it please the court, never in our nation's history until this case has a president claimed immunity and criminal prosecution extends beyond his time in office. the president has a unique constitutional role, but he is not above the law. separation of powers principles, constitutional text, history, precedent and other immunity doctrines all point to the conclusion that a former president enjoys no immunity from criminal prosecution. at a minimum, this case, in which the defendant is alleged to have conspired to overturn the results of a presidential election is not the place to recognize some novel form of criminal immunity. now, i want to start with

jurisdiction as judge childs raised, it is our view that the court has and should entertain both claims before it. with respect to the immunity claim, i think this court's decision in cisneros ten years after midland alluded to a separation of powers claim that would involve presidential immunity. i think judge henderson pointed out the supreme court itself has acknowledged that this idea of an explicit guarantee is more of a suggestion than some sort of statutory prescription. >> but there has been no cases since then that have actually used that word suggestion to follow up on that line of thinking. >> within the supreme court, i don't believe there have been cases, but this court in cisneros as well as in cases also post midland asphalt, like rose, duranburger recognized that this type of a separation of powers claim when you're talking about immunity is something for which a collateral order -- appellate jurisdiction

on a collateral order theory is possible. >> there are other circuits, i think 1st, 2nd and 10th that keep following that line of thinking and it requires an explicit constitutional or statutory language that says you cannot be tried. >> so, two responses. one, i think in cases like sas cisneros, this court has spoken. i think the only one there is the 1st circuit discussion in joseph, a court was raising an immunity defense to a criminal prosecution. as this court acknowledged this both rostenkowski and durenburger, didn't acknowledge that, but the court there talked about claiborne and hastings, which are 9th circuit and 11th circuit cases. i think judge easterbrook in his shock opinion noted when it deals with a personal immunity like that, it is different than the kind of transactional immunities that were considered in the 10th and 2nd circuit

cases and at the end of the day, i think we do sort of a small point of common ground between us and the defendant, we do think that with respect to jurisdiction, there is a little bit of a different inquiry with respect to a president. we don't think that carries over to the merits in the least and i think the united states versus nixon is the perfect example of that. there, the court said it would be unseemly to hold the president to require the president to go into contempt, nonetheless reaching merits rejected president nixon's absolute executive privilege claim and required that -- >> you don't see a distinction on the civil versus criminal context where the cases i'm referring to are criminal cases? >> i don't. and rose said as much here when talking about civil and criminal with respect to speech or debate. and, again, i know nixon versus fitzgerald is a civil case and we strongly disagree it should be applied here. i think with respect to the immunity, again, given the

language in rose that would supply basis for this court to entertain the immunity claim. now -- >> why aren't you taking the position that we should dismiss this appeal because it is interlocutory? doesn't that advance your interests? >> our interests are two fold. one, as the united states versus nixon it is doing justice. and second is indeed to move promptly to satisfy and vindicate the public's and the defendant's interest in a prompt resolution of this trial. but doing justice means getting the law right, and it is our view that even if a dismissal on jurisdiction might move this case faster, that's hard to know, we just don't think that's the right analysis here on either immunity or the second claim. >> we have a line of cases including cramer versus gates and american hospital association versus azar, it says we can assume hypothetical statutory jurisdiction and reach the merits of a case.

statutory jurisdiction being distinct from article 3 jurisdiction which we could never assume, because that implicates the power of the court to act. if we had discretion to reach the merits versus just dismissing this case under midland asphalt, which i think is a strong precedent, which suggests that this appeal is interlocutory, and not -- does not fall under the collateral order doctrine, how should we determine how to exercise that jurisdiction about whether or not we should reach the merits? >> i think in the american hospital decision, the 2020 decision, the court said said the formulation was something like we're doubtful as to our jurisdiction, but nonetheless, invoking the line of cases you've just described, went on to decide the merits. we would urge the court to do the same here. even if it entertains doubts with respect to the jurisdiction. yes, hypothetical statutory jurisdiction is available under the law of the circuit. the court should use that to

reach the merit -- >> doesn't that lead to a hypothetical decision in an advisory opinion? >> no, i think we disagree -- >> the supreme court said that. >> i don't think the supreme court said that. the steel co. is the leading supreme court decision and some courts including this -- this court has devised a hypothetical statutory jurisdiction doctrine. now, if this court were to dismiss for lack of jurisdiction, and then say, nonetheless, as an alternative holding, you know, here is how we would come out on the merits, that i think would be improper. that's what i understand the american oversight brief to be suggesting in footnote 11 on page 20 of the brief, that i don't think is something the court could do. i understand the hypothetical statutory jurisdiction piece to allow the court to say, you know what, this is hard, there might be arguments on both sides, we think that there is -- we assume hypothetical statutory jurisdiction, we move forward, we decide the merits now -- >> let me ask you about marbury

versus madison. what is your interpretation of this progeny or even the case itself? >> so, our interpretation is much closer in line with what i think heard judge pan set out and similar to yours. it does not erect an unreviewable power for the presidency. i think the prime example of that is the steel seizure case, the youngs town case. that was president truman closing the steel mills, the court coming in and reviewing that. we see that all the way through to the present. and so, it is hard to see any world in which the court just says, you know, we can't intervene here. we do see -- accept the distinction between sort of ministerial and discretionary acts, compliance with the law is not some sort of discretionary call, right? it is something that the -- i fully endorse or agree with the idea of the paradox of

presidents on the one hand having the article 2 take care responsibility, on the other hand sort of seeing the laws as compliance with the law is optional. >> let me switch and ask you, how do we write an opinion that would stop the floodgates? your predecessors in their olc opinions recognized that criminal liability would be unavoidably political. >> so, a couple of responses. for one, of course, that was with respect to a sitting president. i think the analysis is extraordinarily different with respect to a former president, which olc in that very same -- i'm sorry -- >> with respect to being necessarily political -- >> well, i think the -- there is a political process which is impeachment and we can talk about that, but there is a legal process which is decidedly not

political. and that is a process which has the kinds of safeguards that a couple of members of the court here have already referred to, we're talking about prosecutors who -- who follow strict codes and who are presumed to act with regularity, grand jurors, pettitte jury eventually and this court standing article 3 court standing above it. but i also want to push back a little bit against this idea of floodgate. at least since the watergate era has there been widespread societal recognition including by presidents and the executive branch that a former president is subject to criminal prosecution. and nixon was not about private conduct. nixon was about among other things using the cia to try to interfere with an fbi investigation. he then accepts a pardon, understanding that after having resigned, so i think that also undermines this impeachment first argument. after nixon, we then see a

series of independent and special prosecutors investigating a range of different types of conduct. you saw independent counsel lawrence walsh in the iran contra affair. the defendant invokes in his reply brief in chapter 27 of that report, the independent counsel assumes that president reagan is subject to prosecution and says but we didn't get there evidentiarily. that has continued through to the present. the notion that we're geeing to see a floodgate, i think the careful investigations in the clinton era didn't result in any charges, the fact that this investigation did doesn't reflect that we are going to see a sea change of vindictive tit for tat prosecutions in the future. i think it reflects the fundamentally unprecedented nature of the criminal charges here. never before has there been allegations that a sitting

president has with private individuals, and using the levers of power, sought to fundamentally subvert the democratic republic and the electoral system. and frankly if that kind of fact pattern arises again, i think it would be awfully scary if there weren't some sort of mechanism by which to reach that criminally. >> and your brief you raised some sort of lesser immunity potentially applying. want to speak to that? >> i do. we don't think that's -- that comes into play here. i think the point was in some sort of more challenging cases, it might be that where a president is operating under extraordinary time pressure has to make a very difficult kind of national security type of decision. do i go in and commit this kind of -- do we order the strike under these circumstances? a president will often have a cadre of lawyers to advise him or her. the lawyers say, madam

president, we'll get your memo in two months. that's not going to be enough in that situation. if there were a drone strike, civilians were killed, that theoretically could be subject to some sort of prosecution as murder. i think that might be the kind of place in which the court would properly recognize some kind of immunity. but then, of course, nothing like what we have got here. i sort of take the former official's brief discussing the vesting clause to talk about the kind of nature of charges when they focus on, again, subverting the electoral process, and at a minimum there should be no type of immunity that covers that. >> so are you saying it should be a case by case balancing in each case whether there is immunity or how does this work as a legal standard? >> so, we think that it should just be as the district court held a finding -- there is a balancing under fitzgerald, right? that's our view. you start with this question, what are the burdens against the presidency, and what are the

interests to be furthered? i think the answer to that question under fitzgerald, we think the burdens that my friend talks about on the other side are overstated, i'm happy to describe why. we think the interests in the public's interest in an ongoing criminal prosecution means there should be an across the board rule that a former president is indeed subject to criminal prosecution. what i'm describing in response to judge childs' question is in a particular case, might there be some extraordinary circumstance where a president, a former president could invoke an immunity? maybe. i don't think the court has to reach that there. i think the court could write in an opinion that observes and says based on the nature of the allegations which we take as true there is no reason to recognize that here. and so i don't think it needs to be a case by case analysis, but i think the court can reserve that type of question to the extent it gives one pause about a president in a future situation.

>> can you answer the question i posed earlier to your opposing counsel about are we to look at the broader question that was dealt with by judge chutkan with respect to presidential immunity, absolute immunity for no criminal prosecution of official acts versus looking at this indictment and accepting as true the allegations that are brought there or both? >> so we have a strong preference that the court adopts the former view. and looks at the question in the way of -- as a district court did. which is to say, based on questions of separation of powers, of constitutional text, history, precedent, is there, in fact, immunity for a former president? we think the answer to that is no for all the reasons we put in the brief and i'm happy to address here. candidly i think if the court gets to that second question there are some hard questions about the nature of official

acts and frankly as i think judge pan's hypothetical described, what kind of world are we living in if as i understood my friend on the other side to say here, a president orders his s.e.a.l. team to assassinate a political rival and resigns before an impeachment, not a criminal act. i think that is extraordinarily frightening future, and that is the kind of -- if we're talking about a balancing and weighing of the interests, i think that should weigh extraordinarily heavily in the court's consideration. >> let me ask you about the effect of blasting game. how does it either bind us, how is it persuasive? >> i think formerly it has no application at all because, of course, very early on in the opinion the court says we're not dealing with any questions of immunity in the criminal context.

i tend to agree with my friend on the other side that in many respects, it does reinforce the nature of the fitzgerald civil outer perimeter standard. it says you don't look at intent or you don't look at purpose, context plays a more important role than often the content of communications. i think the significant change, of course, is the acknowledgement of the -- looking at a president, whether that president is acting in his or her role as office seeker or office holder. but, again, to go back to my response to judge childs' question, although that would change the nature of whether certain -- may change the nature of whether certain things are or are not official acts in the indictment, we just think that's entirely the wrong paradigm to use. we think under fitzgerald, it could be inconsistent with fitzgerald's reasoning and also just irreconcilable with the nature of how criminal law works. to say we're not going to take account of motive or intent,

there are plenty of acts that every day -- for example, if i were to encourage someone not to testify at trial because i wanted to go on a hike with that person, it is not a crime. if i were to encourage someone not to go on a hike because their testimony -- encourage them to skip their trial testimony because their testimony was going to incriminate me, the same underlying act. and now when you map that on to the criminal -- to the presidential context, you come up with some of the frightening hypotheticals where as long as something is plausibly official, even if it involves assassinating a prominent critic or a business rival, that would seem to then be exempt, potentially, from criminal prosecution. we certainly wouldn't concede that if that's the world we need to live in, i think we would advance plenty of arguments below, but we really -- but those arguments themselves would create satellite litigation that are additional reason not go down this route.

>> but, looking and thinking about your answer about potentially not looking at motive and intent, when there is a criminal prosecution, that mens rea is part of the actual statute charged criminally. >> yes, precisely. that's why it wouldn't make sense to then come in and use this nonmotive intent. as i understand how fitzgerald outer perimeter standard might work, it could say those types of official acts, official conduct are -- that is something from which the president is immune. you don't ever get to that second question of, well, did that person act then with mens rea. can we prove it beyond a reasonable doubt? it is at least under a theory where it is not available at trial, then there is no way to reach that conduct. >> whether we're looking at this indictment, back to judge henderson's question about the use of blasting game, some of the acts are same or similar and there was direct discussion of

it in that opinion as determining whether it was office seeker versus office holder. do we use blasting game for that? >> so, if this court decides the case the way the district court does, did, pardon me, then i don't think blasting game has any role to play at all. because there is no question of whether, you know, is this act official or were these sets of allegations official. the question is, based on a fitzgerald analysis history precedent et cetera, you know, is there any quantum of immunity for a former president? we think the answer to that question is no. there is no reason as to the district court also found to turn to the indictment and consider this outer perimeter. this civil outer perimeter standard. >> how about -- the way the district court did? >> if you don't, i mean, i suppose -- >> blasting game. >> so, there are different ways the court could not decide it that way. i think to pick up on my response to judge childs, we

certainly stand by our view in the brief that some substantial number of allegations would fall outside of an outer perimeter. and that i think is enough to affirm. i think either party are urging the court at that point to send, of course, the case back to the district court. i think that then would create a series of challenging questions that i mentioned earlier. what are the evidentiary theories under which that evidence could potentially come in? and it would be our strong view and we would want, if the court followed that route, which we urge the court not to, to make clear that immunity is an on/off switch, right? this is the immunity. if the court says we affirm, we send it back, there is no immunity, then other things become evidentiary questions or questions really of jury instructions, which any appeal is then an appeal from the final judgment if any final judgment. >> immunity defense is never

lost. >> well, i don't think it is immunity at that point. i think this court will -- in what i described will have said there is no immunity. there may be some types of other challenges as evidence comes into trial. but i think that would lead to this extraordinarily complicated litigation that is not the top line reason, but certainly among the reasons why the court should not go down that path. >> since president trump concedes that a president can be criminally prosecuted under some circumstances, he says that that is true only if he is first impeached and convicted by congress, do you agree that this appeal largely boils down to whether he's correct in his interpretation of the impeachment judgment clause, that is if he's correct, that the impeachment judgment clause includes this impeachment first rule, then he wins, and if he's wrong, if we think the impeachment judgment clause does not contain an impeachment first

rule, then he loses. >> so i think that's basically right. the defendant's theory over the course of this litigation has einvolved a bit and i think now before this court i understand the argument to be principleably the principle submission to be as you just described. this -- what he we call in our brief a condition brief argument. there is only criminal liability for a former president if that president has been impeached and convicted. and that is wrong for textual, structural, historical reasons. one reason to amplify the point, it would mean that if a former president engages in assassination, selling pardons, these kinds of things, and then isn't impeached, and convicted, there is no accountability for that individual. and that is frightening. now, to go back to some of the textual and structural and

historical, my friend on the other side suggests this is what the founders were talking about and this is what they were worried about. i think it is entirely an inaccurate representation of the founding era history. there is basically no discussion of the impeachment judgment clause, which i take the defendant's principled textual argument to be, what the impeachment judgment clause did was two things, as the district court described, constrained the sanctions that congress could place on an impeached and convicted officer, not only a president, any kind of officer, to removal or disqualification. and then it made clear that that impeachment did not impose some sort of precollusive bar on some sort of prosecution. you would think if there is a impeachment first requirement, you might actually find something, somewhere, in the sources, the framing convention in philadelphia, the ratification discussions, early history, there was nothing of that. we cited certain things in our

brief, from james wilson, from edmond pendleton, from representative dana that say this, justice storey, i don't hear the defendant to offer anything other than well, hamilton. all hamilton was describing was the undisputed point that a sitting president cannot be subject to criminal prosecution and that president is no longer in office, whether removal from office is through impeachment and conviction, or simply the end of the term. now, structural point as well that i want to quickly make, the district court made this, if this rule were right that would -- if the precedent rule were correct, it would pose significant separation of powers problem of its own. it would mean the executive branch would only be able to prosecute someone that if congress had acted, and all sorts of reasons why, of course, congress won't act, for one they never believed it was required and also the -- in certain

instances they may decide they don't have jurisdiction. many of the members of congress seem to hold that view with respect to the defendant's second impeachment. thank you very much. >> yes, go ahead. >> thank you, your honor. my limited time remaining, i want to make three points to the court. one, the opposing counsel used the phrase above the law, saying immunity doctrine for criminal immunity would place the president above the law. i would direct the court's attention to what the supreme court said at nixon against fitzgerald and civil immunity. they described the allegation that immunity sets the official above the law as, quote, rhetorically chilling but wholly unjustified. the u.s. supreme court, the separation of powers, the executive vesting clause, the impeachment judgment clause, these are the foundational law

of our country and the president's immunity is determined on that. that is more rhetoric than reality is what the supreme court said in nixon against fitzgerald. the indictment does not allege that president trump did anything wrong after he left office. so it focuses solely on acts that he took while he was in office and that's a telling indication we're dealing with official acts here. and then finally, i would address judge henderson, your question about the floodgates and i tie that to what my opposing counsel said about a frightening future. the frightening future he alleges where presidents are seldom if ever prosecuted because they have to be impeached and convicted first is the one we have lived through for the last 235 years. that's our republic. what he's forecasting is a situation where the floodgates will be opened, we're in a situation where we have the prosecution of the chief political opponent who is winning in every poll --

election, upcoming next year and prosecuted by the administration that he is seeking to replace. that is the frightening future. that is tailor made to launch cycles of recrimination that will shake our public for the future. >> do you have the clause as you indicate impeachment, then conviction, but then the president either resigns, is removed, and then later on is prosecuted for a different crime, can that happen or is there immunity there? >> not sure i understand the hypothetical. can you say it again? >> just indicating if you're resting on that there must be impeachment and conviction, and it is for one set of crimes, but then later on the president either moves -- is removed from office, or resigns, and later on there is a prosecution for something different, is there immunity for that later crime? >> yes, i think that's the better reason not presented in this case because we have a close match between the conduct, the underlying conduct that's alleged in the eight articles of impeachment of which there was

an acquittal. an acquittal. the strongest case for double jeopardy and between the facts alleged in the indictment. if there were -- >> you just made a statement about he's only being prosecuted for crimes while in office. and so that's why i'm asking about leaving office and then thereafter being prosecuted for something different. >> the constitution, the best reading would be he has to be impeached and convicted for the thing he subsequently prosecuted. if they charge him with another official act that was unrelated to the impeachment, i think that what chief judge marshall said would govern. the court doesn't have to decide it, but that would be my answer. >> i want to confirm, your position is if president trump had been convicted after his impeachment trial on inciting an insurrection, if he had been convicted, then this prosecution would be entirely proper?

>> i would say that if he were impeached and convicted for the same and similar conduct, that would authorize a subsequent prosecution. >> is that a yes? because i think you said in your brief, that that impeachment for incitement of insurrection is based on the same or related conduct as that what is in the indictment. >> yes, i agree with that. >> so, if he had been convicted by the senate, then this prosecution would be entirely proper, correct? >> i would not phrase it that way. but there is other problems with the prosecution that we raised at the district court. >> under the impeachment judgment clause, if he had been convicted by the senate, when he was impeached for incitement of insurrection on same or related conduct as what is in the indictment, then this prosecution would be properly brought? >> a prosecution could be properly brought. this prosecution which has tons of other problems with it, i want to be very clear about

that. i'm not making any concession -- >> let me try one more time. under your interpretation of the impeachment judgment clause, if president trump had been convicted when he was previously impeached on same or related conduct as that which is in this indictment, the government could properly prosecute him for that same or related conduct, yes or no? >> potentially provided they qualified with other legal documents that are violated in this case, so i admit that -- >> i'm only asking you under your interpretation of the impeachment judgment clause, is that proper? is that allowed? >> may i stand on my prior answer? i think we -- >> i understand there might be other reasons why you would challenge this prosecution, i'm saying based on your interpretation of the clause, this prosecution would be properly brought? >> if a -- i would not say this prosecution, very clear about that. >> a prosecution based on same or related conduct.

>> this prosecution, which has many other issues related to it, what i would say is the impeachment judgment clause authorizes the prosecution of a president who has been impeached and convicted by the senate -- >> make it a hypothetical. say a president was impeached and convicted on a charge of incitement of insurrection that is under the same allegations as a criminal indictment, he's convicted, then the government could bring a prosecution for the same or related conduct, correct? >> i don't disagree with that. >> okay. and then that means that the conduct that is same or related, even if it is official, he could be prosecuted for it, correct? correct, okay, thank you. >> my question goes to after the fact that -- the reason i state that, even though you're challenging that these actions are only occurring while president, the district court's decision was that there is no presidential immunity from

prosecution for official acts. it doesn't put a time frame in there. and so that's why i'm going to beyond your investigation, your prosecution might not come until later. after the president has left office. so are you telling us that we are limited to a time frame in answering this question? >> i think the time frame is set forth by chief justice -- against madison when he says never examinable by the courts. unless there is that one gate keeping incident that has to occur, which is impeachment and conviction, the official acts the court has no jurisdiction to review them under the u.s. separation of powers and the executive vesting clause. >> that also assumes that an impeachment proceeding occurred. if there is not one, because we discussed earlier that not all officials go through that process. >> absolutely. >> that's a judgment call as to whether that process would even be brought. >> i would say we have two arguments that reinforce each other. so, if there is no impeachment ever and no conviction, then the official acts are immune, period.

further, the impeachment judgment clause incorporates a doctrine of double jeopardy that prohibits it, especially in the case of acquittal. a reinforcing doctrine that are set forth in the constitution. if there are no further questions, we ask the court to reverse. >> all right, thank you. >> hello, this is ana cabrera reporting in new york. and we were just listening in to live arguments and appeals court in d.c. this was a three-judge panel hearing the appeal by donald trump and his lawyers to the federal election interference case, arguing he has presidential immunity. we heard from his lawyer there, john sauer, who began and ended today's hearing. we also heard from the special counsel team in the middle. and those were questions directly from this appeals court to those two sides. i want to bring in our legal

experts here with me, and it is chuck rosenberg and lisa rubin joining me to discuss what we just heard. i'll start with you, lisa, ladies first. >> oh, wow. >> what stands out? >> i think what stands out to me, ana, two things. one, there is an argument that was made by some friends of the court, what we call amici, an organization called american oversight that said the court didn't even have jurisdiction to hear this appeal. why? because in the ordinary course you are to go through an entire prosecution before you appeal it, the number of instances or types of situations in which you can bring amid case appeal should be limited to particular kinds of cases. and their argument was there is no appeal in the middle of the case unless there is an ambiguous right to that appeal. that argument was much more appealing to these three judges than i think any of us anticipated. i don't necessarily think they'll decide on that grounds.

but they spent a lot of time exploring whether or not they should even be here in the first place. i thought the answer from the special counsel's lawyer james pearce was particularly a good one, because the special counsel doesn't want this appeal to be kicked. they want it to be decided. and when he was asked why, he said two things, one, because it is their job to do justice here, and because the public's interest here is in a speedy resolution of the prosecution against former president trump. in other words, they don't want to go through a trial against former president trump, and then have him come back and say, hey, wait a minute, remember my argument i was immune, i would like to have that resolved now. they want it resolved now, and in part because they know that the wins favor them and based on what we just saw in the argument, i think chuck and i both know that judges ask lots of questions, oftentimes to really test where they think they're going, but if i'm reading the tea leaves, i saw three judges today who could take a number of different

avenues to affirming judge chutkan and saying there either isn't presidential immunity or to the extent there is, president trump is not eligible for it here. >> your thoughts. it is always easy to go after lisa. i thought it was an interesting argument. i'm a little bit biased, ana, because i come at this as a former prosecutor. i thought the government's position was particularly strong, both in its brief, and in its presentation today. it is hard for me to imagine that this court, whether now or later, is going to find that a president has absolute immunity. they may make a distinction in this case or another day, another case, with another president, that there is some act that hypothetically gives an another case with another president, that could give the president immunity from prosecution, but this ain't it. and forgive me for interrupting, this case on appeal requires

judges to take the facts alleged in the indictment as true, and if you do that, it's really hard to imagine that you can make a convincing argument that president trump was acting in his official capacity. he was seeking to retain office. he was a candidate and a president, but the acts alleged as illegal, as unlawful by this grand jury were in his capacity as an office seeker, not an office holder. i can't see how immunity would apply here. >> first of all, you didn't have to apologize for interrupting, because you didn't, and i was about to interrupt you. the lawyer for trump was arguing two separate things, that he couldn't be prosecuted for acts he took as president because of

absolute presidential immunity, and the other issue was this idea of having him been impeached but then acquitted over january 6th related actions, and that precludes him from later being tried in a court of law, and arguably there's a double jeopardy. there's immunity and a separation of powers. it was interesting about the argument in bringing up other administrations and prosecuting other past presidents like barack obama or george bush. let's listen to that argument we heard from trump's lawyer. >> to authorize the prosecution of a president for his official acts would open a pandora's box from which this nation may never recover. could george w. bush be prosecuted for allegedly giving false information to congress to

induce the nation to go to war in iraq under false pretenses? could president obama be charged for murder for authorizing drone strikes abroad. >> that backfired for two reasons. there have not been prosecutions of presidents in our 234-year history, because we have never seen conduct like this, where a president tries to fundamentally subvert our democratic republic. the other issues he raised are just not comparable. but he also invited, then, a parade of hypotheticals from judge florence pan that asked him are you saying, for example, if a president sent out seal team 6 -- >> we have that, too.

>> okay. >> roll it. >> can a president order seal team 6 to assassinate a political rival? >> he would have to be impeached and convicted before the -- >> but if he were not, there would be no criminal liability for that? >> then, it was revisited that question, that exact question was revisited referring to that same hypothetical. let's listen to that as well. >> what kind of world are we living in if, as i understood my friend on the other side to say here, a president orders his seal team to assassinate a political rival and resigns, for example, before an impeachment, not a criminal act. the president resigns or is not impeached, not a crime. it's an extraordinary

frightening future. >> that paints a picture, doesn't it? >> it certainly paints a picture. two argument converges, and one is the constitution because of the separate of powers, the president is immune from prosecution, and that's a structural argument, and then there's a clause that is a limitation on the powers of congress, and it says if a president is impeached and then convicted, here are the remedies that are available to congress, which is not authorized to act as a prosecuting agency, doesn't have any criminal remedies at its disposal, and that it can also -- that president can be prosecuted after they are convicted by the senate, and that branch is somehow precluded from prosecuting somebody who

has been impeached but not convicted or was never impeached in the first place, and that's a frightening future. pragmatically, putting aside all the constitutional interpretation, anybody watching that or listening to it here this morning as we have, i think it's intelligible to them that the idea that you can only be criminally held -- that has nothing to do with the system of government under which we did. >> if the president did something very wrong, criminally wrong, he or she could resign from office precluding, perhaps, an impeachment, and then invoking a crazy doctrine and that would put me off limits for criminal prosecution, and i think the government articulated that well in its argument, and there are a couple things at play, ana, one, pointing to all of the other presidents doesn't

really work because they were not criminals, perhaps with the exception of mr. nixon, and the fact that this has not happened doesn't mean it will. in fact, it's very likely it won't. i would think mr. trump is unique in that way, at least i would hope. second, it can't be the case that you can only be prosecuted for a crime if the senate makes a political judgment that you ought to be impeached and convicted. the criminal law has a much bigger role here, and it's one of the things that the department of justice is trying to protect. the courts often talk about the paramount importance of the criminal law, that nobody is above the law and nobody should ever be above the law. there are certain immunities and certain instances, but not here and not blanket and not absolute. these are important principles the department of justice is trying to defend in this case and at this oral argument. >> we heard from the three

judges, and two of them were biden nominees, and one was an h.w. bush nominee, and she got to this idea of could this open the floodgates, right, which is something that trump's lawyers certainly are trying to point to as a danger zone if the judges allowed this case to proceed. let's listen to what we heard from judge henderson on that. we're working to get that. stand by. >> i think it's paradoxical to say that his constitutional duty allows him to violate criminal laws. now, we're at the motion to dismiss stage, and the government has charged specific criminal laws, and we have

assume they are true, and -- >> that naturally -- >> but i thought you agreed with me that we have gotten beyond marbury. >> so that wasn't the exact sound bite, but that was another point that stood out to us that we heard from judge henderson, just this idea if he is trying to protect the laws, can he break laws in those actions? it just describes a little bit of the lack of common sense in the argument that we are hearing from john sour. i want to go to ken dilanian outside of the courtroom, and what is top of mind for you after listening to the arguments today? >> first of all, ana, i was struck by the fact that this hearing was much shorter than the one on the gag order in this case, which suggested that there

really is less here than meets the eye in terms of constitutional arguments to chew on. it was pretty cut and dried. i was also interested in the idea that some of the judges and both of the lawyers really acknowledge that there could be some room for some kind of limited presidential immunity, and mr. trump's lawyer brought up the interesting example, because i covered it, of president obama ordering a drone strike against an american citizen who was a member of al qaeda, and it was argued that it was a war crime and improper, and you can envision prosecutors somewhere trying to bring a case against mr. obama after he left office, and that's the thing to acknowledge that you could be subject to presidential immunity, and the president going outside the bounds in the

role of presidents talking to state officials about election fraud and pressuring those officials, that is so outside the bounds of the presidential conduct, and that is where most of the judges were and that's where jack smith is arguing. you know, it really seemed like the judges had a hard time with the arguments made by president trump's lawyers. >> okay, ken, thank you for your reporting. just a quick reset here at the top of the hour, i am ana cabrera in new york, and we just heard arguments in appeals court in d.c. to trump's appeal in the federal election interference case, and we are here discussing that, and i want to bring in former fbi council, andrew

weissman. where do you think this headed? >> well, obviously the discussion of the s.e.a.l. team 6, that was the sound bite and the hard question for donald trump's team. i think the other thing for people to keep their eye on is not the merits, and it seems clear to me that the d.c. circuit is not going to say that the president is -- the former president is immune. i am interested in the issues that came up having to do with timing of when this case can get back on track. so there are two points about that. one is there was a suggestion from some of the judges and questioning about whether the case should go back to judge chutkan for some fact finding if the court were to say that the court needs to -- the district court needs to decide what is

within the president's functions and what is not within the president's functions, and whether he was acting as president or whether he was acting as somebody seeking the office as a campaign official. very similar to a prior case they decided, and also to the judge's case in the 11th circuit dealing with mark meadows. that would entail, if they did that and it went back to judge chutkan for that fact finding, that's more delay in the case, at least potentially. the second thing that was interesting is they opened their questioning on the supreme court's case called midland, and that case had to do with whether this is really a proper appeal at this point, because the normal issues as lisa and chuck know well, in a criminal case you wait until the end of the case to have these kinds of appeals, and there's a limited

election, and the court seemed interested in whether they should be hearing this case or it should go back to the trial court to proceed with the trial. those are two things i am keeping an eye on in terms of what is the timeline here, because i think the merits is one where i don't think there will be a lot of surprise on how they come out. >> stand by, if you will, andrew. i do want to play the sound regarding the future and what this case could mean moving forward when we heard from judge henderson, and asked the question about opening the floodgates. we have that sound now and let's roll it. >> how do we write an opinion that would stop the floodgates? your predecessors in their olc opinions recognize that criminal liability would be unavoidably political. >> so a couple of responses. for one, of course, that was

with respect to a sitting president, and the analysis is extraordinarily different with respect to a former president, and the olc -- i'm sorry. >> with respect to being -- >> there's a political process which is impeachment, and we the talk about that, and there's a political process which is decidedly not political. >> andrew, we know donald trump has already threatened to use the justice system against president biden should he end up back in the white house. it seemed like that question was specific to some of the threats we are hearing on the campaign trail. is it going to be difficult for the judges here to write an opinion that walks that line? >> so i think the government had

the better of the response here to judge henderson's excellent question. what she is saying is do we have to worry in the future about various state and federal prosecutions and the weaponization of the criminal justice system? judge chutkan dealt with that in her opinion when trying to differentiate why criminal cases and not having criminal immunity makes sense if you don't have civil immunity, and structurally if you have a criminal case, you have to have a grand jury to indict, and it's not up to the prosecutor to indict, and for there to be a conviction, the standard proof is beyond a reasonable doubt, and that's not found by a judge or found by a prosecutor, but that is found by 12 citizens, and they have to find that unanimously.

also, there's double jeopardy, which means you can only be prosecuted once, and if you are worried about a flood of prosecutions, there's already a check on that. and the district judge could say you might insulate a former president or current president from civil liability where you don't have all of the structural checks, but it wouldn't make sense to say because you have civil immunity, you should not have criminal immunity. it was a fruitful discussion, but i think judge chutkan laid out the path forward if you are trying to stem that sort of floodgates problem. >> andrew weissmann, thank you so much for that analysis. i want to bring in justice reporter, ryan riley.

one person we did not hear from, but who was there, ryan, was donald trump himself. how was he reacting during these arguments? >> reporter: that's right, and apologies for the music in the background. and donald trump walked in about five minutes before the arguments started, and he took a brief look around and he took a sigh and sat down, and he was mostly muted and listening, and there was legal ease that went over his head, and he was most animated when his lawyer was speaking and his own lawyer said claiming that donald trump was winning in all the polls, and that got the most reaction out of trump with him shaking his head yes, and he was animated during certain parts of the special counsel's argument, and this was a pretty tense atmosphere in the courtroom, and you had jack smith seated there as well and i didn't see a

moment where they met eyes, and you had three or four rows of officials there, and there was an empty row, and this was a pretty intense lockdown, and obviously everybody's phones were required to be turned off as soon as they entered and remained off throughout the entire event, and for only a few people in the courtroom got to see donald trump's reaction to this, and we only had the audio and not the televised pictures we would expect in some of the other trials. >> he has not made any comments outside the court, has he? >> not that we have seen, and there's not a great opportunity for him to do here, and the secret service is obviously coordinating with all of these different law enforcement agencies in charge of security here including the u.s.

marshals, so they can bring donald trump in through the garage to the courthouse and up the back stairs. cameras are not allowed inside the entire complex, so there's not an tunnel for him to hop in front of a bunch of cameras, because that's not the way he goes in and out of the building. some of the posts he made on truth social, and there were a couple moments in the proceedings that stood out to him, and like i said, what got the most reaction out of him is when his judge argued that he was winning in all of the polls. he sent numerous notes on a yellow legal pad to his counsel there, and you are not necessarily getting the people who are actually at the center of the cases coming to these appellant arguments, and they could get a briefing afterwards or something, and he sat down at the counsel's table and his

legal squad behind him. >> and jack smith was there, even though he was not the making the arguments on behalf of him, and this is before a trial officially gets under way. and ryan, the big question is what happens next? how does this case proceed moving forward? can you give us any kind of guidance on that? >> reporter: sure, they are moving forward on an expedited basis. we can see the direction they are going, but donald trump and his lawyer already indicated they are going to seek an onblanc consideration of the meeting of the entire panel, not just three judges but the entire federal appellant court takes a look at the issue and moving it on to the supreme court. there's a slim or lesser chance that the court could say this is untimely and kick it immediately back down to the district court

and say they should only be able to take up the issues after the case sort of made its way all the way through prosecution, and most likely we are going to have a scenario where donald trump is going to ask for an inblanc review, and then ask for a supreme court review as well. this is all about the clock at this point with jack smith seen trying to keep this on schedule as much as possible, and in recent days there are litigation back and forth between the teams, and trump's team saying jack smith's team should be held in contempt for not keeping in line with the deadlines, and they are doing their homework to keep this on track as much as possible. >> thank you for your reporting. i want to bring in legal analyst charles coleman, also listening

into the argument, and what is your reaction to what ryan said, and donald trump was most attentive when there was discussion about how he is the leading candidate in the polls? >> i would love to say that legally this is something that donald trump was interested in, but at the end of the day we all know this is something that plays directly to donald trump's ego, and as somebody embattled politically and legally, this is good news he has to look forward to, because if he's sitting in the hearing and listening to the argument and the questions being asked by the panel, he has to understand he's up against a significant hurdle trying to get judge chutkan's original decision overturned. >> one thing we heard from trump in a video overnight, charles, was that, one, this is election interference, and he's trying to get the charges dismissed and

rally his base behind him politically, and maybe the legal argument here is that the actions he took looking for voter fraud, no evidence of that, and there were legal pathways to go forward in doing so which were completely exhausted, and there was nothing there, but he says i was not campaigning at that point. the election was long over, and i was not campaigning, looking for voter fraud something i have to do under my mandate. going back -- he's trying to argue still that he was taking official duties as president in his actions? >> yeah, i don't think that argument is going to fly very much. that was one of the things i was most curious about, and that is what are donald trump's attorneys going to say with the question of absolute immunity, and i thought it was brilliant that jack smith and the prosecutors did leave some level of room, and i believe chuck rosen talked a little about this, about the idea of some degree of qualification around

potential immunity in the future, but not necessarily here. the reason that is so important is because what it does is allow the judges not to contour an opinion that basically gives no future options to any future president, and that's something that will be appealing to this panel, even as donald trump already talked about going forward. with respect to your question around that as a legal argument, i don't believe that's going to fly, but interestingly enough, one of the things i will say about your previous question, and donald trump perking up with respect to him being number one in the polls, the longer this goes and the closer he gets to securing the nomination, that argument potentially begins to gain more traction. at this point when you are one of many candidates in a primary field, it doesn't carry as much weight as it could, and when you

have the momentum when you are the candidate that will represent the republican party in the election, and that is something that may be of interest to him and also plays into his long-term strategy of delay, delay, delay. >> charles coleman, thank you so much for your thoughts. chuck and lisa, a final thought from each of you, and he brings up a good point of time is of the essence, and so is this trial date in march still in jeopardy? >> i have said the march 4th date is endangered but not doomed. it's not necessarily the case that the entire d.c. circuit court of appeals will hear this argument. the loser can petition for a hearing with everybody, and the d.c. circuit doesn't have to grant that. and the loser could also appeal to the supreme court, and the supreme court doesn't have to hear it, so if you get a quick

decision, and one that is judged on the merits, one that has no double jeopardy or immunity, judge chutkan could get the case back on track quickly. again, endangered but not doomed. >> lisa, what will be you watching for next? we have about 30 seconds. >> how quickly this gets resolved and on what grounds? even if the circuit decides there's no presidential immunity here, it doesn't necessarily have to affirm judge chutkan without any comment. i don't think all three judges here are going to choose the same route, but i think they will get to the same results which is that the trial gets to move forward and maybe it doesn't have to be stayed as former president trump continues to appeal. >> yeah, he could appeal, appeal, appeal, delay,

delay, delay, is the mode he's operating under. >> thank you very much. i appreciate you spending this past couple of hours with us. up next, the campaign and the courtroom. the political dynamics at play as donald trump looks to balance his regular and busy legal calendar with his 2024 campaign, but are the political laws of gravity upsidedown when it comes to the former president's support among gop voters? >> does the potential of criminal conviction in one of the trials this year, does that give you pause? >> no. not really. >> how have the indictments against him impacted your involvement and your fervor for donald trump? >> oh, i believe him even more. kinda like me. order in the subway app today. about two years ago, i realized that jade was overweight. i wish i would have introduced the fresh food a lot sooner.

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to find an expert physician near you. ask if bulkamid is right for you and discuss potential risks. results and experiences may vary. move beyond the leaks. states government was seeking to evacuate, among other initiatives. they played a role in we're back with breaking news taking you to a completely different story, different legal case. democratic senator bob menendez of new jersey is speaking on the senate floor right now about the second superseding indictment filed by a grand jury concerning the bribery charges against him. let's listen in. >> qatar's engagement with its next door neighbor, iran, and hamas, have all been points of contention, and i criticized qatar as i have any other country when i felt they were falling short of their international obligations and

applauded them when they led in ways the united states and the world would commend. that give and take, that carrot and stick, that is the essence of diplomacy. it's a job we all partake in every day as part of our duties in the senate. the government seeks to use baseless conjecture and not facts to substantiate the allegations. they show a picture of watches but no proof of receiving any such gift. they talked about tickets to a state-sponsored event, but as we know members of the senate often attend state-sponsored events, and i have seen the state department and justice department attend state-sponsored events. the government fails to mention the family referenced to already had their own purchased tickets to the event, and that's not a

bribe. finally on this point, the suggestion of the introduction of a person -- under the government's theory, it may be a crime for members of the senate to make introductions to companies, constituents in their own state, to foster investments in their state, and investments that create jobs and help grow the economy, and indeed, if that's a crime, then advocating for boeing aircraft to be purchased by a foreign government, attracting a foreign chip manufacturer to your state, and getting a country to buy agriculture products from your state and making technology investments and other actions that members of the congress take to attract investment and economic opportunity to their states would now be a crime. let me turn to the government's

other outrageous accusation of conspireing to act as a foreign agent for the government of egypt. this is an unprecedented accusation, and it has never ever been levied against a sitting member of congress, never. and for good reason. it opens a dangerous door for the justice department to take the normal engagement of members of congress with a foreign government and to transform those engagements into a charge of being a foreign agent for that government. i want to address the accusations as they relate to me, and i don't want to you lose sight of how dangerous this precedent will be to all of you. let me start by describing my history of my defense of human rights and democracy and the rule of law in that country, in egypt. one fact is in disputable.

throughout my time in congress i have remained steadfast on the side of civil society and human rights defenders in egypt and everywhere else in the world. if you look at my actions related to egypt during the period described in the indictment, and throughout my career, my record is clear and consistent in holding egypt accountable for its unjust attention of american and egyptian citizens, and its human rights abuses and deepening relationship with russia among other concerns. in 2017 -- >> okay, we have been listening into the live reports from senator menendez, addressing allegations against him and two superseding indictments. let's go to ryan on the hill for us. the new indictment didn't come today. why is he making these remarks

now? >> that's a good question, and i am interested to see what he says at the end of the remarks, because he has not addressed whether he intends to resign, and the other still open question as it relates to bob menendez' future is whether or not he runs for re-election in the state of new jersey, and he's up for election and is facing a long list of opponents seizing on the fact that he's dealing with the legal issues. nothing in the speech reads anything except he's done nothing wrong and his political career should not be over. what we saw him do here is outline how his activities, some of which the federal government, the justice department accused him of doing at the benefit of these foreign governments and payments exchanged as a result, and it's just him doing his everyday job as a member of the

united states senate, particularly as somebody who was the president of the foreign relations committee, and it was his job to work with foreign agents. many of his colleagues asked him to resign, step down or not run for re-election, and he ignored all those calls and tens to be forceful in his response to these accusations by prosecutors. they just continue to stack the charges up, and the evidence continues to stack up against him, and it does seem as though he has a very, very difficult path forward, not only legally but politically as well, ana. >> ryan nobles on capitol hill. thank you. we will continue to listen in and monster the remarks on bob menendez and bring you any new headlines that come from those comments. in the meantime, let's go back to the breaking news,

donald trump spending days before the iowa caucuses in court, and he will be in des moines tomorrow for a fox news town hall to counter the cnn gop debate, and then he will be in court for the closing arguments in a case, and then he flies up to rally and has four rallies this weekend, making saturday his next public event in iowa, just two days before the caucuses there. i want to bring in republican strategist and political analysts, along with former rnc chairman, michael steele. great to have you join the conversation here. trump did not have to be in court today. we are less than a week away

from the iowa caucuses. he could be on the campaign trail but wanted to be in court. >> he did, and who is not to say being in court is not like being on the campaign trail for donald trump. he has been using his time in the courts and even in his briefings as a way of campaigning and getting media attention, and he wanted all eyes focussed on him for the last hour and a half as he shows up to court and leaves court. because, let's not forget, trump's whole candidacy is based as being a legal defense for him so he doesn't go to jail, and that's why he's running for office. he is hoping to win so he doesn't face prison time. the case today that we heard, the arguments, and your legal panel said, and i am paraphrasing, they were not very good. >> donald trump's lawyers' arguments? >> right, and maybe that's what

he wanted his followers to hear. his lawyers are just doing part of his campaign messaging. >> adrian, does this resonate with voters? >> it could with some of the primary voters, and the more legal troubles donald trump gets in, the more ironclad his base supporters are. when it comes to attracting moderate republicans and independents, we have seen this in poling after poling and that determines if donald trump is convicted, that he will lose a significant chunk of supporters. not just primary voters, but in the general election, too. yes, this might be good for revving up the base and going to iowa and the courtroom and going back and forth and trying to paint himself as the victim. when it comes to the key voters that you need to win a general election, it does not bode well. >> michael steele, mike davis who is a legal adviser for trump

and his campaign told nbc news they are turning donald trump into nelson mandela. what do you think? >> [laughing ] that's what i think of that. trump is no nelson mandela, and he has not made one sacrifice for anybody but himself. it's all part of the victimization game, and it's all part about the what if-ism, and it's comparing him to great figures in history where he doesn't measure up to any of them. he wants to get the base rock solid behind him, and he has locked iowa, and he has evangelical voters, and today he's 51% among evangelicals in

iowa. that's what trump has been about, finding the tools and mechanisms and tweaks here and there that energized that place and locks them in place so he can steamroll through this process, and use the legal process as a backdrop for his campaign, where he's in washington today, and he's got the motorcade and the sirens and the lights, and sort of this presidential ora about him. he's a criminal. all right? that's what he is. he has already been convicted of sexual harassment and abuse. look, this is what he is, and he uses the institutions of government and the judicial system as a weaponization against those very institutions and elevating up his political opportunities. >> we do expect to hear from donald trump following today's hearing momentarily.

we will keep an eye on that. but there are still the logistics of all this, right? he may be a showman and it may work to his advantage fm that perspective, to be at th courthouse and then going to another court hearing, and then going to iowa and campaigning, and i creates all this e around dond trump. primary campaigning is a grueling slog when you are not facing 91 felony counts and all of these civil lawsuits. how do you see the logistical challenge of this crammed schedule? >> look, i mean, the campaign will work it out. they will get -- i mean, the fundraising is all about, you know, paying for all of this, and you know, that part of it will take care of itself, and it's not like he's -- like he doesn't have the money or won't have the money to put those logistics in place. look, it depends on how we in the media and in politics want to cover these two story lines,

and how we set them up. we either do it the way donald trump wants us to do it, or we do it in a way in which we draw clear delineations, where we don't sort of treat them both as one in the same, because that's aiding and abetting in my view. when you sort of wrap the logistics of the legal piece into the political piece, when you wrap the messaging from the legal piece into the political piece. i think that needs to be with clear lines of delineation, and bringing brought up on criminal charges is one thing, and running for office is another thing, and we need to be clear about that. it sort of helps, i think, to break down the narrative a little bit further that donald trump is somehow above the law, that he is protected by the

political piece, and that the legal piece becomes twisted because they don't want it infused with the politics. >> michael steele, thank you for your thoughts. susan and adrienne, stay with us. next up on "ana cabrera reports," decision time, just days before the iowa caucuses. don't go anywhere.

i think he's having a midlife crisis i'm not. you got us t-mobile home internet lite. after a week of streaming they knocked us down... ...to dial up speeds. like from the 90s. great times. all i can do say is that my life is pre-- i like watching the puddles gather rain. -hey, your mom and i procreated to that song. oh, ew! i think you've said enough. why don't we just switch to xfinity like everyone else? then you would know what year it was. i know what year it is.

welcome back with the iowa caucuses. just a week away, donald trump is absent from the campaign trail, instead in a d.c. courtroom with the claim that presidential immunity protects him in the federal cases, and the former president is holding on to his lead from afar. and garrett haake is joining us from des moines, iowa.

it's crunch time. i am wondering how voters there are taking it? >> reporter: well, ana, donald trump has made his legal challenges particularly anything in which he's facing off against the federal government like the interference case into a campaign message, a core campaign message. he's totally indistinguishable from a messaging point of view from what he's doing on the ground in iowa. it's less than ideal conditions in iowa for campaign events to be happening today, and he's not being penalized for being off the ground today. when i talk to voters in the state about the fact that donald trump is choosing, and not being compelled to, but choosing to be in courtroom on the campaign trail. they just don't care. listen to some of this. >> he will always be attacked, because he's the outsider and he's exposing people for things

that they don't want to be exposed for, so even if he gets re-elected this time, it's going to be an uphill battle. >> now it's up to us to feel what he feels as well, and we represent him in all localities, and when they are indicting him, we are being indicted. >> i am being indicted for you. my first thought for you that jesus christ died for my sins, and it connects in my brain that way, he's the target where we don't have to be. >> reporter: ana, as your panel rightly noted, that level of devotion to donald trump is going to be far more common in a primary than among the kind of swing and independent voters that you need to win a general election, but that's tomorrow's problem. for the trump campaign, today's

problem is sealing the deal in iowa on the way to winning the nomination. even nontrump supporting republicans in the state believe he's basically fighting the government on their behalf, and he's well on his way to doing that. >> garrett haake in a very snowy and cold des moines, iowa, for us, without even skipping a beat in his reporting. thank you for that. back with us, democratic strategists. ladies, you just heard from iowa supporters of donald trump, and one even comparing donald trump and what is happening to him to the persecution of jesus. >> yeah, and first of all, as garrett can attest, when it

snows it only helps the person with the most support. as we get closer to the caucuses, assuming the weather is where it is, this will only help donald trump because your supporters will come out and caucus for you. that is good for donald trump. i am assuming he's the gop nominee, which we have ever reason to believe that he will be. how is this going to play out? how are all of the court challenges going to play out in a general election? it's not going to bode well for him. we have seen this in poll after poll. i think he will wrap up the primaries quickly. >> your thoughts, susan, from what we heard on the voters? >> yeah, they are coming out in snow, as adrienne mentioned, and he's running a cult, and people

supporting him are followers of donald trump, and not necessarily political supporters. that being aside, what is important is to start looking at the people that show up on primary or caucus day. i agree with adrienne, diehard people have followers show up, and trump is out there with a message saying vote like it matters and you have to show up. i am wondering if they are concerned about how big their core support really is. not that he is worried about losing, but, again, looking towards the general election, are people really out for him the way they used to be? >> and we see the snow. there are forecasts for it to perhaps be the coldest caucus day in history there in iowa, something in the single digits potentially. here are live pictures at a hotel in d.c. where we are anticipating remarks from trump following his hearing in d.c.

today. we are also getting interesting developments in the polling in new hampshire. when we talk about momentum, adrienne, you mentioned this, he may have momentum in iowa, but new hampshire is a little bit of a different story. there are some different polls coming out on this today. take a look at this one from cnn and the university of new hampshire showing haley's support in new hampshire has grown by 12 points since november, and only 7 points behind trump. there's polls indicating trump is ahead of haley by 20 points, but what do you make of that? >> if nikki haley can get up less than ten points, it gives her momentum to stay in the primary, and she has money and the koch brothers, and that infusion of cash. this is a long primary season.

i worked on hillary clinton's campaign in 2008 where we slugged it out with barack obama for five months during the primary season, and she could prove she can do well in a state like new hampshire, that could give her momentum, and even moderate and conservative republicans would like to see donald trump not lock up the race quickly. if she can keep raising the money and do well in new hampshire, it gives her more momentum go into super tuesday. >> we don't have a very fresh poll out of iowa. what do you think? >> i think there's every chance that nikki haley will leapfrog over ron desantis and come in in second place, and that will even give her more momentum moving into new hampshire. iowa could be very interesting in that regard, because basically ron desantis also has to drop out if he comes in third in iowa. her momentum going into new

hampshire is very real, as adrienne mentioned, and also because 40% of voters are unaffiliated, and they could vote in either primary, and those voters can go -- those unaffiliated, they can go and vote in the republican primary, and that's where things get interesting. the registered republicans, yeah, he may have the diehard support, but however, independents are not happy with donald trump and may show up just to prove that. >> we are going to listen, and we are not going to go in live initially when he makes the comments, but we will keep an eye on that and make sure you know what you need to hear following his appearance in court in d.c., the presidential immunity claims that he is making and trying to dismiss the charges in the election interference against him, and we

are monitoring what we are hearing from the other side of the aisle. we heard from former first lady, michelle obama, about the 2024 election in a new interview in a podcast, and i want to talk about what she said as we continue to monitor what is happening in d.c. >> i am terrified about what could possibly happen, because our leaders matter. who we select, who speaks for us, and who holds that bully pulpit, it affects us in ways that i think sometimes people take for granted. the fact that people think, government, you know, does it really even do anything? and i am, like, oh, my god, doesn't government do everything for us, and i think we take this democracy for granted, and sometimes i worry we do. those are the things that keep me up. >> do you think those words will

have weight with democratic voters that are disengaged right now? >> yeah, and i have more faith in terms of what the polls show in terms of biden getting re-elected, and we have the most -- we have so many incredible surrogates. we have not started using the surrogates on the campaign trail, and we have strong governors, governor whitmore and others, and when you see the surrogate operation fanned out across multiple states in the country, it will remind voters that it's not just about president biden and vice president harris, but it's about the avengers, and they are going to remind people what is at stake. again, it's not just biden and harris saying these words, but

it will be president obama who truly -- i think it's going to make a big difference. >> they have to start doing it now. they can't wait until the convention. there's a build in narrative that biden is losing younger voters and hispanics, and they need to change the numbers and not for the general election purposes but for the narrative that we are hearing starting now, and the longer the lack of support or lack of interest for joe biden among his base is out there, the more baked in it gets into the equations in how we talk about it, so i really wish that the biden team or the dnc, rather, would get those surrogates out there early and really start going after younger

voters. >> i am confident they will. >> i just want to let our viewers know what we are watching right now, live images inside a hotel in d.c. donald trump is speaking following the appeals hearing we brought to you live here on msnbc a short time ago. back with us is also chuck rosenberg, a former senior official with the fbi and former prosecutor. we are monitoring these remarks because we don't know if he is going to spin things or if he is going to be factual. he's calling the trial a threat to democracy. your reaction? >> well, ana, i disagree. let me tell you why. the criminal justice system, and i grew up in it so perhaps i am biassed is about a search for the truth. it's not perfect and often is elusive, but whatever we say here, or whatever he says in a ballroom in some washington hotel doesn't matter as much as

what is said in front of a jury and what the jurors do with that information. the bar to convict somebody is extraordinary high, and properly so and the burden is on the government and that remains throughout the trial, and the jurors have to be unanimous in their verdict, and it's not a threat to democracy, it is our democracy, and it's fundamentally what is good about our democracy. again, it's imperfect, but i credit the jury system with trying very hard to get things very right. >> i am told right now the former president is d.a. willis. he is going down the rabbit hole when it comes to all the cases. he is facing 91 criminal counts against him, federal jurisdiction, state court. he has several fraud trial -- a

trial in new york. next week it's the e. jean carroll trial. a number of different legal venues where donald trump is having to defend himself legally but also a lot of this is how he is trying to defend himself politically and boost himself politically. ladies, what do you see as the political stakes of his legal woes? >> again, i go back to the fact that i think it only helps him with his base of voters. >> when it comes to the democratic system here in america -- he is talking about this being a threat to democracy. he is calling the prosecutions against him, grand juries who said these charges are legitimate, he is saying that that's election interference. what's the political argument against it? >> his argument is ridiculous.

number one, it sets a horrible precedent going forward. i hope -- assuming this does go to the supreme court, i'm hoping the supreme court does take this up quickly. if you were in america and you are like, why is donald trump able to say these things, violate gag orders, why is he able to violate some of the processes that have been put in place and you suffers -- it seems like he is suffering no consequences from that. it erodes your view of the judicial system. it erodes your faith in the way politicians act. it's not a good thing. he doesn't seem to care. he doesn't care. when you are the average person looking at this, you wonder why he is able to get away with it. >> i think he has been able to get away with it in part among his supporters because for seven years he has been going after doj, the fbi, our legal system. let's not forget when he was a candidate he said a judge didn't like him because he was mexican.

donald trump doesn't throws that all out. he knows where to take it for his base. i really believe that it doesn't matter if he was under indictment for civil cases or criminal cases, if it was 91, if it was 291 or it was four, his political argument is, it's us versus them, as you heard in the last segment. that supporters said, if they indict him, they indict us. that's what he has instilled among his followers. it's not a valid argument in my opinion. we will find out if it's a legal argument soon enough. it really has become a matter of our faith in our institutions. i think what donald trump -- the damage donald trump has done to that for seven years is still immeasurable. >> there's two things here, susan. one is our institutions and the other is our faith in the

institutions. sometimes they diverge. people have less faith in our institutions, congress, ucar -- academia. if you look at the lawsuits they filed after the last presidential election, 60 some odd lawsuits, 60 some odd losses. the institutions are fine. it's our faith in our institutions that has wavered. i think it's important for people to keep that in mind, too. >> attacking prosecutors, attacking judges, is leading to threats -- physical threats against these people who are public servants who are doing their job to uphold the justice system in this country. we heard of swatting incidents at judge chutkan's house. she's the d.c. federal election

interference case judge. also against jack smith and his family. these are cases where a caller makes a fake report of an emergency at someone's home trying to bring if a large police presence. what do you see as what's at stake for these public servants, the people who are trying to do the work in moving forward with this prosecution? >> generally, i think public servants are not doing it for the money, for the acclaim. they are certainly not doing it for the abuse. but they understand they have a job to do and that sometimes there are kwer consequences thae with it. when i was a prosecutor, i had a number of death threats. you keep pushing forward. by the way, i was never worried about the people that threatened to kill me. i was worried about the ones that didn't tell me that that was what they wanted to do. you keep pushing forward. that's all you can do. the alternative is unfathomable. it would be surrender.

>> i was going to say, in georgia those two election workers beat donald trump. it was through rudy giuliani, he was doing trump's bidding. seeing that success in the georgia case, i think kind of -- it gives people hope that actually justice -- our judicial system is working. >> i don't mean to suggest it wasn't frightening for them. i think that was -- i don't mean to suggest it wasn't frightening. but you are right, the institutions held. the person who slandered them, defamed them, threatened them lost. whether these two good ladies collect on their judgment is another matter. but they have a judgment. our view of our institutions and how they actually function diverge. it's important for americans to remember that these things are sound. albeit impossible.

and that they held. >> i will let that be the last word. thank you so much. appreciate all of you being part of this conversation. that's it for us today. thank you for joining us. see you tomorrow at 10:00 a.m. eastern. jose diaz-balart picks up our coverage right after this. fter .

good day. it's noon eastern. i'm jose diaz-balart with you for the next two hours. former president donald trump insisting he did nothing wrong and that he deserves immunity from prosecution. a short time after his hearing at a d.c. appeals court wrapped up. when we could expect a decision in the case. new reporting on why one of trump's co-defendants in georgia's election interference case is trying to get his charges thrown out. pentagon reviewing whether