said, and that is that public service -- people can make such a huge difference if they go in there with a servant's heart, like a senator bradley did. and i just pray he's right, that there are a lot of people in washington that can have that servant's heart. >> we'll leave it right there that does it for us this morning. we'll see you tomorrow at 6:00 a.m. eastern. ana cabrera picks up the coverage right now. right now on "ana cabrera reports," breaking news on capitol hill, where we are about to hear from the house speaker with republicans set to vote today and move forward in their push to impeach the secretary of homeland security. do they have the votes to do what hasn't been done in more than a century? plus, the bipartisan border bill in jeopardy. the gop divisions that threaten to doom the deal. also ahead, the head of the faa in the hot seat on capitol hill. set to testify in just moments

on midair scares that grounded the boeing 737 max 9s. and later, millions still under flood alerts, los angeles one of the many cities under water as a record-breaking system drenches california. thanks for being with us. a lot to get to. i'm ana cabrera reporting from new york. we begin with the breaking news on capitol hill where we expect to hear soon from the speaker of the house. he's set to take reporters' questions as republicans plan to move forward today with a vote to impeach homeland security secretary alejandro mayorkas. they allege he has committed high crimes and misdemeanors by failing to secure the border. it is unclear whether republicans actually have the votes to succeed. all this comes as gop divisions threaten to sink that new bipartisan border bill. nbc's julie tsirkin is joining us from capitol hill. we'll see the speaker any minute

now. what should we expect to hear from him on this impeachment vote we know house republicans have just a razor thin majority to get this passed. >> reporter: yeah, they do. he certainly is going to face questions on that because in the last couple of minutes we actually found out that there is a key vote that is now voting no. a key republican, i should say, that is congressman mcclintock of california who released a ten-page memo, ana, detailing why he believes that republicans, his colleagues, have not made the case for why secretary mayorkas deserves to be impeached. he said in part, in this memo, of course, that they have not outlined the reasons determined by the constitution as to why he qualifies for that high crimes and misdemeanor threshold. that means all eyes are on congressman dave joyce of ohio who has not said how he will vote either. they can only afford to lose about two seats, depending on democratic absences. interestingly, and notably, my colleague kyle stewart just asked patrick mchenry who was

the temporary pro tem speaker when mccarthy was ousted and he said no comment. you have a few that are squishy on this. we're getting ready to hear from johnson, he'll not only address impeachment, the vote getting ready to happen later today, but the border bill that johnson and the rest of the leadership team said is dead on arrival in the house, ana. >> if it is dead on arrival in the house and even some republican senators seem to be backing away, what is the latest there? >> reporter: that's a good question. according to majority leader schumer in the senate, he's ready to move forward on the procedural vote that is expected to happen tomorrow. but everything sort of changed yesterday evening when behind closed doors republican senators had met and even leader mcconnell who is supportive of the border policy, remember, this was negotiated in part by conservative senator james lankford of oklahoma, also supportive of ukraine and israel aid that is all tied together with the border policy in that bill, even mcconnell had told his colleagues according to our

sources that they should vote against that procedural step tomorrow on the floor, presumably seeing the writing on the wall. but this is definitely about politics and less about policy and we expect johnson to be pressed on it this morning too. >> julie tsirkin, we'll keep an eye on the comments from the house speaker. in the meantime, i want to bring in democratic california congressman robert garcia, congressman, thanks for taking the time. this impeachment vote comes as months of the bipartisan negotiations on the border seem to be falling apart. have republicans successfully hijacked the conversation surrounding immigration? >> well, look, what they're doing actually is creating chaos. they absolutely have no interest in any real solutions on the border. they have no interest in fixing immigration system. they have no interest in helping our allies in ukraine and humanitarian aid and it is really this whole thing is a huge political sham.

we know this whole impeachment process was started by marjorie taylor greene, who filed this impeachment hearing, there is absolutely no evidence republican scholars even agree that there is no reason to impeach secretary mayorkas. at the same time, they don't want to take any sort of package to the house, to have a debate about immigration at the border. this has turned into a complete joke, the speaker has no real power over the house. and they want to do everything they can to damage president biden of this important issue. this is all about donald trump and marjorie taylor greene. >> we just heard republicans can only lose three votes if everybody shows up. two already. colorado's ken buck and tom mcclintock from california say they will vote no. what are you watching for on the other side of the aisle here? do you think they have the votes? >> i think we're unsure. one thing we have always known is that the republican conference is led by the extreme far right maga win of the party. they control the agenda, they control what happens.

it is good to see that there are a couple of members understanding this is a very serious process. there hasn't been -- we don't impeach cabinet secretaries because we disagree with a policy. i hope there are more republicans that join them. there are other republicans across this country that are in moderate seats, they should be voting no on this sham impeachment process and so we have been encouraging republicans that we speak with, i sit on the homeland security committee where we actually voted on this issue and i really hope that they see the light and do the right thing here. there is no reason for this impeachment. what we should be doing is working together to solve the problemss at the border. >> what do you think of how mayorkas has handled his job? >> let's be very clear, the increases along the border in the crossing started when donald trump was the president.

in the last year of his presidency, the border crossings tripled in number. and this is because of historic criss happening in venezuela and other places. we have a huge challenge there. president biden requested surge support and additional support along the border that republicans denied and don't want to fund. there are huge challenges. secretary mayorkas has probably the hardest job right now in the country trying to manage the challenge. >> do you think he's doing the best he can? >> i think he's doing the best he can under difficult conditions and without any support. he needs more support. that's what we're trying to get him right now. >> let's talk about the immigration bill in the senate. is he and the rest of the gop bowing to trump's pressure here? is that what's going on? >> absolutely. donald trump completely controls everything that happens with the republican party here in

washington, d.c. when donald trump came out and said there will be no border bill because i want to essentially damage president biden's re-election chances, then the entire collapse happened. so there is no border bill that we're going to hear because donald trump doesn't want it to happen. we also know that it is donald trump that is directing folks that marjorie taylor greene to file the impeachment papers against secretary mayorkas, against president biden. that's also another impeachment sham. the republican caucus is in complete chaos because donald trump commands every single thing they do, and certainly tells the speaker mike johnson what to do every time he picks up the phone. we know he's doing that in the exact same case with this bill. >> we'll be watching closely in this impeachment vote today. thank you. next hour, my colleague jose diaz-balart will speak with senator chris murphy, the lead democratic negotiator on the senate border bill. more breaking news right now, the head of the faa about to testify in the house about those recent scares with boeing 737 max 9 jets. and the administration oversight

of those planes. this after a door panel exploded off that alaska airlines plane midflight, resulting in the faa grounding the max 9s for inspection. let's bring in senior national political reporter sahil kapur and nbc news senior correspondent tom costello who covers aviation for us. tom, i know you're going to be listening closely to this hearing. the faa is promising to beef up scrutiny of these planes. what exactly should we expect to hear from whitaker today? >> reporter: no doubt the faa, the chief himself will be under pressure today. he's only been on the job for 100 days or so. he's new to the job. but the congress is going to be asking what happened to faa oversight of boeing. because following the two overseas max 8 crashes, congress told the faa you need to do a better job of keeping track of inspections and oversight inside boeing facilities.

they didn't give the faa enough people to do it, but the faa has been trying to keep an eye on boeing production. so, what happened to that oversight? how did quality control break down? listen to what they said on cnbc a few hours ago. >> once we're convinced they're producing those safely, then they can certainly ramp up as long as it is a safe ramp up. we'll let safety drive this decision. i think what we have seen here is there are production problems. on january 5th, it identified two issues, an issue with the plug door, which we dealt with one work stream, and then it just raises issues about the production of boeing, what is going on. there has been a series of problems over the last few years and we need to get our arms around that. >> reporter: boeing will be on the hot seat today. >> tom costello, thank you very much for the reporting there as we prepare to see the faa administrator take the hot seat. we have major breaking news now

i have to get to. this comes from that d.c. appeals court that had taken up this issue of presidential immunity. the court has denied trump's argument that he should have presidential immunity. we are still just looking through this ruling here. 57 pages. again, they heard the oral arguments for this about a month ago now. and this opinion has been holding up essentially the ability for the trial to move forward. we reported this week the d.c. judge, the trial judge, tanya chutkan, had to remove the calendar, the trial date from the calendar, which was supposed to start on march 4th, because of the delays with this, which held up the rest of action on this case. her ability to file motions, ability for evidence to be handed over and processed between the two legal teams. i want to go to our vaughn

hillyard, who is standing by who is covering the trump campaign. vaughn, what more are we learning about this ruling and how trump and his team may be reacting? >> reporter: i'm digesting this in real time with you as well. i know we're just beginning to look through this 57-page filing here. this was a three-judge panel from the d.c. circuit court of appeals. this was a stay that was issued after judge chutkan ordered that donald trump did not have presidential immunity and that the federal charges of election interference would go forward against him. and three weeks ago, his team, after appealing that ruling from judge chutkan, went before that three-judge panel, the appeals court, and laid out their cases as to why the charges against him should be dismissed. three weeks later, now just in the last three minutes here, we have that decision from the appeals court in which they affirmed judge chutkan's decision and say that donald trump does not have presidential immunity. now, we should note that the

trump team already indicated they intend to appeal this decision to the u.s. supreme court. you'll recall that special counsel jack smith had intended and requested that the supreme court be the initial ones to hear donald trump's appeal and bypass the appeals court. that did not happen. that is all but effectively slowed down this case. you said judge chutkan acknowledged the march 4th trial start date would be pushed back. we are looking at that anywhere from as late as april or may now beginning here. but when we're talking about what has actually been determined by the court here, ana, this is notable, not only just in this case, but also for future presidents who serve in the oval office. you'll recall that donald trump's attorney had made the case to the appeals court that a president can only be charged with crimes if he were to be then impeached and convicted by the u.s. congress. making the case that donald trump, that did not happen. when the senate voted to not

convict him after the house voted to impeach him on those january 6th charges. now, donald trump over the last several days on social media, as well as from the campaign stage, has continued to make the case that a president should have full presidential immunity. so they do not fear that any actions that they take in office could ultimately lead to charges once they leave the oval office. now, donald trump's attorneys were asked by one of the judges on that panel three weeks ago about a particular situation in which let's say a president of the united states were to order s.e.a.l. team to assassinate a political rival, would he be ultimately able to be charged after leaving the white house, and donald trump's attorney made the case that he should be protected unless the congress was impeached and convicted him. now as we're beginning to work through this here, this actual 57-page ruling and decision here from the appeals court, clearly these three judges decided that

a president is not immune from being charged. at least until we hear from the supreme court on this, in whether they take up the appeal or not, at this point in time donald trump and the federal election interference case against him will be moving forward. >> okay. so, vaughn, please stay with me as we start going through this little by little. i'm reading on page 20 here, a quote from this three panel of judges, our analysis is guided by the constitution, federal statutes and history as well as concerns of public policy, relying on these sources we reject all three potential bases for immunity, both as a categorical defense to federal criminal prosecutions of former presidents and as applied to this case in particular. could not be more clear cut that they are rejecting the arguments put forward by donald trump's legal team to make a case for presidential immunity. our julia ainsley is looking through this filing. what stands out to you, julia?

>> well, i'm looking here because all of what you're reading here and the way that the appeals court is upholding the district court's decision, arguments that we're going to be talking about again as trump goes before the supreme court, not only for this case, but also arguing that he should be immune for the same reasons that the state, like colorado, would take him off the ballot. we'll continue to talk about trump immunity. i want to look to this particular line from this three-judge panel, where they say we have also considered his contingent he's entitled to categorical immunity from criminal liability for any asserted official action, they say a contingent unsupported by the text and structure of the constitution. all of the claims that trump made up until this time, even in his e. jean carroll defamation case, all builds around the fact that as president he was basically untouchable, that he was acting in his role as

president, and so he therefore should be able to say what he wants about someone like e. jean carroll, what he did on january 6th, he should be immune from prosecution and in this case and that he should be able to even because of january 6th remain on the ballot in states like colorado. all of this is going to try -- all those arguments have hinged on this idea that what he did as president was protected and here these judges are saying that that protection is not granted anywhere in the constitution or in the history of the united states. they're basically debunking a legal defense that trump has been using time and time again, ana. i think we're going to continue talking about that as this case and others head before the supreme court. >> and they are picking it apart, trying to attack each and every one of the defenses that are related to presidential immunity. they write on the issue of separation of powers doctrine,

one of the defenses related to presidential immunity, page 21, he relies on marbury's oft quoted statement that a president's official acts can never be examined by the court. properly understood, the separation of powers doctrine may immunize lawful discretionary acts but does not bar the federal criminal prosecution of a former president for every official act. let me bring in lisa rubin, our msnbc legal analyst, as you are going through this as well. what is your reaction to this opinion and how the judges have laid out their case? >> let's start with the fact that even before we get to the substance of the opinion, what i thought might be happening over the last couple weeks is indeed what happened. you and others of our colleagues have asked me repeatedly what is taking the court of appeals so long, give than they granted expedited review? and my prediction was all three of these judges, who had somewhat different approaches

during the oral argument were trying to figure out a way to come together and issue what is known as a procureiam decision, it is a decision that is unsigned by any one particular judge. we have seen this happen before an appeals involving former president trump, mainly in the 11th circuit, when judge aileen cannon appointed a special master after the mar-a-lago raid, three judges of the 11th circuit, one of whom is a very well known conservative judge, the other two of whom are trump nominees issued a decision saying there was no legal basis to appoint that special master. indeed, here, on page 2, you see judges henderson, who is a george h.w. bush nominee, judges childs and pan, both nominees of this president, president biden, are filing an opinion for the court per cureiam, unanimous with all three of them. in terms of the substance, you'll remember that at oral argument, but also in the brief,

one of the arguments that trump's lawyers made was would it actually be okay to prosecute, for example, former president obama for war crimes and went through a litany of hypotheticals of things that other presidents had done that they asserted were sort of on the edge of lawfulness and legality and suggested that, of course, presidents are immune, otherwise those people, a, would have feared prosecution, and, b, might be been prosecuted themselves. you see an ample refutation where they say a number of presidents believed themselves to be immune. they also talk about former president clinton who agreed to a suspension of his law license and a $25,000 fine, in exchange for an agreement from the then independent counsel not to

prosecute him for perjury. they also talk about the fact that mitch mcconnell and others famously during president trump's second impeachment said that the answer wasn't a political solution, but was indeed the court's and the justice system's to answer for. and that was an excuse at the time that has come back to bite the former president in his posterior. ana? >> in terms of the process now, we discuss how this opinion and having to wait for it delayed the trial date indefinitely at this point. and, of course, there are more steps through the appellate process, right? so, would you expect trump's team to appeal directly to the supreme court at this point and how quickly could it move? >> you know, they have a lot of time, if they choose to try and run out the clock, and then the onus would be on special counsel jack smith and his team to try

and expedite things. so, for example, even if they were going to skip an appeal en banc to the full d.c. circuit, asking all of the active judges in this circuit to rehear this opinion, even if they skip that and went directly to the supreme court, they have 90 days to file what is called a petition forrer is for certiorari. and the person granting it has another 30 days to apply and that's on the question of if the supreme court should take the case. so, my expectation here is that president trump does not want to rush this, delay is his friend, the further out he can push this trial into the election season or potentially beyond, that advantages him. so, again, next move is sort of by jack smith's office, you'll remember that they tried to skip this court and go directly from

judge chutkan to the supreme court, saying this was an issue that needed to be resolved immediately. the supreme court didn't agree, but said we're open to you coming back to us. so, i suspect that the person who will be trying to expedite this will be jack smith, they will ask that that motion for certiorari itself be expedited and that the hearing of this case be expedited. we're very late in the supreme court term, in terms of when an oral argument and briefing could be scheduled relative to the usual supreme court calendar. for you and our viewers, the supreme court term generally opens the first monday in october, as a historical matter, we don't usually get opinions after the last day in june. we had a couple of exceptions to that and there are some big exceptions to that including united states versus nixon, which was an opinion issued in july. but, if the supreme court is going to hear this case, this term, it will generally have to

expedite this and decide on a briefing schedule and an oral argument schedule that allows it time to make a decision with all due speed. >> and i'm being told our understanding is the d.c. circuit court has now given trump until monday to respond to this in terms of taking further action through this appeals process. let me bring in ryan reilly who is standing by here. you've been looking through this opinion. lisa brings up a good point, jack smith and his team could actually make the first move here in trying to push any other appeal along. is there any word yet from the special counsel's office, and how do you anticipate they will handle this situation now that we have a ruling from the appeals court? >> not yet, but i think the time frame to work on and building off of what lisa said, all of this is up in the air here, right? i think the best case scenario for jack smith's team at this point would be a trial start date in early may because what judge chutkan has indicated that we have gotten a two-month delay off of this, paused in the beginning of december, now we're

in the beginning of february here, so essentially a two-month delay and she said altogether that donald trump's team deserved seven months altogether to prepare for this trial. and so the clock stopped really when this appeal was taking place. she is not going to let this case go to trial until they have a full seven months to prepare. so that -- the best case scenario, which is still i think a little bit unlikely, you would be looking instead of in the march start date, you would be looking at april, now may, early start date. now, the case in chief from the prosecutors here is supposed to take from between four and six weeks is what they have said. but jurors, when nbc news got one of these jury questionnaires that someone in d.c. a potential juror in d.c. received in connection with this case, they were told they could last up to three months. so very quickly here, we're pushing into the rnc, in middle of july here. because if you have a start date, sometime in may, maybe a couple of weeks for a jury

selection, you're very quickly pushing up against that july, mid-july rnc date when you could be looking at a potential return from a theoretical jury here. the clock is really ticking and obviously it is all about clock management at this point. because we have seen even reporting yesterday that indicates everything that we have seen from this case, indicates that donald trump's team thinks he's going to lose this case in d.c. they made that claim, especially about jurors, saying they're biased, and the appeals court is hearing another january 6th case this morning that has to deal with juror bias in d.c. so there are a lot of things and balls up in the air here, but certainly, you know, the best case scenario from jack smith's perspective would be looking at early may here, but even that is not for sure at this point, ana. >> everybody, stay with me. i want to bring in carol lamb, former federal prosecutor. so, carol, as we look to what the supreme court could potentially do with this case,

what are your thoughts? will they take it up immediately if jack smith goes back to them and says, okay, now we have an appeals court ruling here, this was this three-judge panel that sided with the trial court that took it up initially. >> right. you've been talking about the timing issues here. and the need to move this quickly if in fact the trial is going to occur before the november elections. and one possibility here about why the d.c. circuit took the time it did to come up with this 57-page opinion that really deals a number of blows to the former president's argument is that they are taking an approach that they have done such a thorough job here in rejecting the former president's arguments, it leaves open the possibility for the supreme court to say we are not going to accept this case for review, which is the supreme court's right here, to say we're not going to accept this case for review, we find the opinion below to be a sound opinion, and that really limits the scope of

the ruling to the d.c. circuit, the supreme court if necessary could take up the issue, hopefully they'll never have to, but could take up the issue another day with more time on the clock. >> let me read from this opinion again, three judges writing, former president trump moved to dismiss the indictment and in a district court denied his motion. today we affirm that denial. for the purpose of this criminal case, former president trump has become citizen trump. with all the defenses of any other criminal defendant. but any executive immunity that may have protected him while he served as president no longer protects him against this prosecution. how significant is that, carol? >> yeah, well, it is very significant because that is the thrust -- the biggest argument here is does a former president enjoy the same kind of immunity that perhaps a current sitting president does. and the d.c. circuit here has

pretty roundly rejected that argument. they have said that you can't have an unaccountable individual who is unaccountable for all time for all acts as the president. >> and this other part, on the issue of double jeopardy, remember, for those who were with us the day that they heard oral arguments, that was another argument we heard from trump's team, that because he had already gone before the senate and they had -- they had not convicted him, when he was impeached, that this would be like trying him for double jeopardy. here is what they write on this issue. former president trump argues that the principles of double jeopardy bar his prosecution because he was impeached by the house of representatives for the same or closely related conduct but acquitted by the senate. we disagree. we disagree. nothing more than that. i think that obviously wipes out that argument not only in this

case, but in potentially other cases as well. like what we're seeing in georgia, right? >> yeah, well, that was an unprecedented argument and i think most former federal prosecutors like me thought that was one of the weaker arguments because double jeopardy really arises in the context of two criminal prosecutions, that is, you know, usually rises in the context of can you be prosecuted in a state court and prosecuted in a federal court and there are various tests for whether you're really being prosecuted for the same conduct and for the same violation of laws and there is some very technical ways that that's evaluated. but it has never been considered in the context of a political situation, which is what impeachment is and a criminal trial, you know, those two things don't -- it is different processes, different considerations, different sanctions, different allegations and so the double jeopardy

argument in my view never really held that much water and it was pretty roundly rejected here. >> so, vaughn, trump has until monday. how quick do we expect him to move? >> reporter: they should have every reason to have been prepared here to appeal. they were ready to appeal this here in these last weeks, of course, the legal team at the same time is getting ready to make those oral arguments in front of the supreme court related to the disqualification clause of the 14th amendment. this very thursday morning. donald trump, though, this immunity appeal has been front of mind for him. literally overnight at about 11:00 last night, he put out a post which he said, quote, if immunity is not granted to a president, every president that leaves office will be immediately indicted by the opposing party without complete immunity, a president of the united states would not be able to properly function. he has brought it up from the campaign stage, repeatedly in the past weeks, for donald trump there is a clear recognition that if the federal election interference case goes forward,

there are major repercussions, not only potential conviction on felony charges, but it makes the political campaign that he is currently running all the more consequential. in the ability, if he were to win the presidency, to pardon himself of any of these crimes. of course, they have tried to run out the clock. they fought jack smith's effort to bypass this very appeals court and tried to have this in which jack smith wanted this heard by the supreme court initially following trump's team appeal of judge chutkan's initial ruling, but for trump's legal team here, there is also a recognition that this three-judge panel, they wrote, in part, former president trump's alleged efforts to remain in power despite losing the 2020 election were if proven an unprecedented assault on the structure of our government. he allegedly injected himself into a process in which the president has no role. the counting and certifying of the electoral college votes. the question here going forward for trump and his legal team is

just exactly when the supreme court, if they were in fact to take up the appeal, when they would hear it and for a trial that could take about three months here, just how far along would that potentially impact his own presidential campaign in the general election campaign ahead of november. >> back to lisa rubin, the argument trump's trying to make that this just opened up a whole can of worms if he isn't given immunity, did the judges here effectively shut that down? >> i think they did. in two ways. one, they essentially said that if they were to accept his argument of total immunity and i'm looking at the opinion now on page 40, that it would effectively shut down the entire government. that presidential immunity against federal indictment would mean that as to the president congress could not legislate the executive could not prosecute and the judiciary could not review. we cannot accept that the office of the presidency places its

former occupants above the law for all time thereafter. the other thing that i want to bring to your and our viewers' attention is that trump made a calculated risky move here in his arguments, he argued that a provision of the constitution known as the impeachment judgment clause was part of what protected him from prosecution. however, this court is saying on page 41 the strongest evidence against his claim of immunity is that same clause, the impeachment judgment clause, because it says that judgment in cases of impeachment shouldn't go further than essentially removing the person from office, but that if convicted the party nevertheless shall be liable and subject to indictment, trial judgment and punishment. it is that nevertheless that is doing a whole lot of work there, and that this court found was really important. they also sort of in finding that impeachment judgment clause

doesn't do much for former president trump, they're also really persuaded by real life history and the words of even some of trump's political allies. i note going through an opinion like this, one thing a lawyer like me does is look at the footnotes first. you can learn as much from the footnotes as you do from the main text. indeed, footnotes 12 and 13 on page 49 are really illustrative of their thinking. they're saying trump has said that he can't be prosecuted, because he wasn't impeached and convicted. but, in this footnote, they say the history of the united states is replete with people who have been prosecuted preimpeachment because, remember, impeachment is not just a solution for former presidents, it applies to people like article 3, lifetime tenured judges and they cite a number of examples here that there have been hundreds of officers in the united states who have been subject to criminal proceedings for offenses for which they could have been impeached, but were not. they also say, again, going back

to the senate debate and that second impeachment that there were over 30 senators who made statements on the floor saying impeachment is not available for a former president. our constitution teaches that. and the right solution here where impeachment is not available is prosecution and they have a note where they say cite to the senators by name who made statements to that effect and count them up. so this d.c. circuit is literally taking names with respect to the evidence that they cite. it is not just a litany of case law, but real life examples of senators whose floor statements are contrary to the position that former president trump and his lawyers took in this appeal, ana. >> i want to bring in garrett haake, who covers the trump campaign extensively. garrett, how much was donald trump and his team counting on this to help him with his legal troubles? >> well, ana, i don't think that donald trump or his legal team

necessarily thought they would get a favorable ruling from the appeals court here, but they're very much hoping to continue this fight, really on two fronts. on the legal front, as lisa was laying out and as my colleague was reporting a few minutes ago, the idea here is that donald trump can continue to fight this in the appeals court here in washington or before the supreme court for weeks, potentially months, and continue to push back his trial date, whether he pushes it back through more of the primary process, because you have to layer the political calendar here on top of the legal to see where this goes. if you can delay it further in the primary process, that helps him continue to amass delegates and put himself in a stronger position to become the party nominee. if you can push it past the convention, and over the summer, if he is the nominee, he puts himself in an even stronger political position to try to delay this trial. and then, of course, there is the imperative, if he can push a trial or conviction past the election, he could potentially make this go away for himself entirely. that is the legal front and that's why continued delay here

is almost as valuable as getting a decision that he would have liked. not entirely as valuable, but it certainly helps. on the political front, donald trump has really been focused on this case as the january 6th case, the election interference case as the most political case against him. he's been railing against this case since its inception, complained about the timing of it, suggesting the case should have been brought years ago, because it is being brought now, it says it hurts him politically. and his base bought into that as we have seen in the early presidential primaries now, this idea that these cases are political, he argues they're essentially lawfair and if he can make that argument on the stump and i think we'll hear it on thursday. >> i imagine we'll hear from him in multiple social media posts here in the next three or four hours. we'll all be watching because he really has seemed to zero in on this immunity issue and much of his social media commentary lately. it was clearly on his mind.

one of the things that we heard in those arguments the day that we took them here live was that if donald trump was not granted immunity here, every other president was at risk in the sense that any controversial act as president could then later be looked at in a criminal prosecutorial way. the judges addressed this on page 34. and it is interesting, because they're saying this ruling actually protects the office of the presidency from abuse of power, writing instead of inhibiting the president's action, it might serve as a structural benefit to deter possible abuses of power and criminal behavior. where an official could be expected to know certain conduct would violate statutory or constitutional rights he should be made to hesitate. and they say that was harlow

versus fitzgerald. every president will face difficult decisions, whether to intentionally commit a federal crime is not one of them. >> those are sharp words. i would agree that fear has constrained presidents in years past, it has been an assumption that presidents could be prosecuted after leaving office. if there was no assumption that a president could be prosecuted, why then did gerald ford feel it necessary to pardon richard nixon? it has been a constraint on presidents, the only president it didn't constrain was donald trump. now, when he tweets that without immunity, presidents from here on forward will be prosecuted, that's not so much a prediction about what will happen in the future, as it is a threat about what he will do if returned to the office. so let's take him out of the equation. i agree with the judges here that this is a protection for any other law abiding, law

fearing president. the problem is donald trump doesn't behave like other presidents, and, again, time and again he has shown us through his social media posts that his predictions or what he casts as predictions are not predictions at all. they are instead forecasting about what he would do if returned to the oval office. >> catherine christian is joining us, msnbc legal analyst, former assistant manhattan district attorney. i know there was something that stood out to you. what is it? >> well, two things. one, calling him citizen trump. he obviously is a former president, but they made a point of saying you're not anymore. that sort of tracks what judge chutkan said in the district court about him. so, whatever protections he thinks he may have because he's a former president he doesn't have. he's a citizen trump. also, what i -- earlier one of the reporters talked about what he's accused of doing as being an unprecedented assault on the

structure of the government. i also think it is very important that this decision is unanimous. there was some chatter that one of the judges, the bush appointee, might be the reason why it was a delay. and i was hopeful that the reason why it was taking time is because they wanted to write a 57-page decision. so, when it goes for the supreme court to decide whether or not they'll take it or not, the supreme court may say, you know what, this -- enough was said by the d.c. circuit court of appeals. we don't have to do it. but it is clear that this case might be back on track for trial, since the date next week is very close, monday the 12th, for them to go and see if the supreme court will take it. otherwise it is going back to the trial court. but i think this is a very detailed decision and any doubt that anyone had about one judge being the holdup, all three were on the same page. >> and, again, all three sounded

like they were on the same page, during those arguments for the most part. they had slightly different focuses in their questioning. but it is interesting that they were not all democrat-appointed judges. we have michelle childs and florence pan appointed by president biden, but karen henderson was appointed during the bush administration and so, they aren't representative of a -- what trump could point to as a partisan panel or something. >> can i say something about michelle childs too? michelle childs was a district court judge in the district of south carolina and her nomination to the d.c. circuit was backed by someone that we usually associate with former president trump, that is senator lindsey graham was the single largest backer of michelle childs' nomination to the d.c. circuit. while she is a biden nominee, she is one with somewhat of an unusual panoply of supporters in

getting there. you certainly can't accuse her of being a flagrant democrat without republican support when you have lindsey graham sitting next to very proudly at your nomination hearing before the senate judiciary committee. >> laura, i want to ask you a question in a second. we have neil katja also with us, who has a narrow window in which he can join us. former u.s. solicitor general. as you're going through this, what is the big takeaway for you and then what do you think should this rise to the supreme court they do with it? >> the big takeaway is this is a straight loss for donald trump. it is a unanimous loss by a bipartisan panel of very well respected judges. and it is a loss for him substantively and procedurally. the substantive loss is not surprising. donald trump's claim by his lawyer was literally that the president can go and shoot people and kill his political opponents with no criminal

consequences. that is, to put it mildly, a crazy claim. that's what the court said. that's not surprising. what is a bit more surprising is that the court went out of its way to really talk about the allegations against him, substantively. they said, for example, quote, trump's alleged efforts to remain in power despite losing the 2020 election were, if proven, an unprecedented assault on the structure of our government. unprecedented assault on the structure of our government. that's really harsh language by this panel and, again, judge henderson is on the panel. she's a leading conservative jurist, to say that i think is really remarkable. but here is the more important thing, the procedural piece. the court did something really smart. they said, trump, you got to go to the u.s. supreme court by monday, otherwise this case is going back to judge chutkan. he's going to run to the supreme court and my gut is given the

thoroughness and well reasoning of this opinion and the kind of ludicrous claim that trump's advanced on the other that he's absolutely immune from all criminal laws, i don't think the u.s. supreme court is going to take this. i mean, they certainly could. they often take executive power cases, but if i had to put betting money on it i don't think it is close now and i think the supreme court says no, this goes back to judge chutkan and then she has the question, how much time is she going to give donald trump to prepare for his criminal trial for being an insurrectionist. >> just to be clear, if the supreme court doesn't take up this case, how quickly could we learn that? >> i think we could learn it in a couple of weeks. basically if you think trump files his papers at the u.s. supreme court on the 12th, i think the government would be given by the supreme court a few days to respond. i don't think it requires many. and even if the court gave them any, i expect jack smith will take fewer. this could be teed up for a u.s.

supreme court decision over whether to take the case by the end of february. maybe even a little bit earlier. and as i suspect, the court will say we're not going to take the case, it goes to judge chutkan, she could give trump a few weeks to prepare for trial and depending on other court cases involving donald trump and his other litigation schedule, we could be seeing a trial of former president trump for insurrection in the spring. >> neal katyal, thank you. everybody else stay with me. vaughn hillyard, i understand you have new reaction from the trump camp. what is it? >> reporter: yeah, i just want to read the statement just sent to me here by trump campaign spokesman, quote, if immunity is not granted to a president, every future president who leaves office will be immediately indicted by the opposing party. without complete immunity, a president of the united states would not be able to properly function. deranged jack smith's prosecution of president trump for his presidential official acts is unconstitutional under

the doctrine of presidential immunity and the separation of powers. prosecuting a president for official acts violates a constitution and threatens the better -- of a republic. the president will appeal it in order to safeguard the presidency and the constitution. that's a new statement sent in a minute ago by the trump campaign spokesman here. it is important to note each of those issues that was outlined by the trump campaign in that statement was thoroughly written about by those three judges in their appeals decision here and in part of this, i think it is important to pick out from the appeals court decision which they write former president trump's stance would collapse our system of separated powers by placing the president beyond the reach of all three branches. this is not just about the federal election interference charges against donald trump, but also the potential use of the oval office by presidents in the future. of course, donald trump is running for the nomination again. he has talked about being dictator for a day. he's talked about the strengths

of having a strong man running a country, and so the decision by the appeals court in the likely supreme court hearing oral arguments and taking this case up themselves and issuing their final ruling will have great implications not only for this trial that is slated to take place against donald trump, but also future presidents of the united states. >> and other trials involving donald trump potentially as well. vaughn hillyard, thank you very much for bringing us that breaking news. the statement coming now from the trump campaign following this decision by the d.c. circuit court of appeals, and the three judge panel that took up those arguments denying trump's claims that he deserves presidential immunity and that the case should be dismissed. we're going to squeeze in a very quick break. please stay with us. much more of our breaking news on the other side. ther side. (ella) fashion moves fast. setting trends is our business. we need to scale with customer demand...

in real time. (jen) so we partner with verizon. their solution for us? a private 5g network. (ella) we now get more control of production, efficiencies, and greater agility. (marquis) with a custom private 5g network. our customers get what they want, when they want it. (jen) now we're even smarter and ready for what's next. (vo) achieve enterprise intelligence. it's your vision, it's your verizon. ♪♪ whoo! ♪♪ light work! ♪♪ next victims. ♪♪ you ready for this? ♪pump up the jam pump it up♪ i have moderate to severe crohn's disease. now, there's skyrizi. ♪ things are looking up, i've got symptom relief. ♪ ♪ control of my crohn's means everything to me. ♪ ♪ control is everything to me. ♪ feel significant symptom relief at 4 weeks with skyrizi, including less abdominal pain and fewer bowel movements.

skyrizi is the first il-23 inhibitor that can deliver remission and visibly improve damage of the intestinal lining. and the majority of people experienced long-lasting remission at one year. serious allergic reactions and an increased risk of infections or a lower ability to fight them may occur. tell your doctor if you have an infection or symptoms, had a vaccine or plan to. liver problems may occur in crohn's disease. ♪ now's the time to ask your gastroenterologist how you can take control of your crohn's with skyrizi. ♪ ♪ control is everything to me. ♪ ♪ learn how abbvie could help you save.

xfinity rewards presents: '1st and 10gs.' xfinity is giving away ten grand to a new lucky winner for every first and ten during the big game. enter daily through february 9th for a chance to win 10gs. with the ultimate speed, power, and reliability the xfinity 10g network is made for streaming live sports. because it's only live once. join xfinity rewards on the xfinity app or go to xfinity1stand10gs.com for your chance to win.

breaking news this hour. the d.c. appeals court denning donald trump's immunity claims, and back with us nbc's senior legal correspondent, laura jarrett, and lisa ruben. you said finally we got the answer? >> everybody was wondering why it took so long, and not so long in the relative speaking because appeals take forever normally, and so the question was what was going on? the fact that it's unsigned, meaning not one judge is dissenting or anything like that, and perhaps there's behind the scenes wrangling making sure it was the type of opinion everybody could sign on to, and perhaps somebody got sick and it delayed things, but we don't know why it took four weeks.

now that it's here it's a uniformed rejection of what the former president was saying, and they are basically saying he's not above the law. that's what this boils down to, he's not above the law. and he can't play games with the timing on this because they know the whole point of this was to delay, delay, delay, and even though judge chutkan rejected it and now the appeals court rejected it and perhaps the supreme court will reject it, and this was supposed to go to trial march 4th and that will not happen under any circumstances now because of how long this took. even if he lost this battle, he might have won the war because the war was to make sure he did not go to trial before the election. >> he was entering the freakout stage on whether or not the trial will happen before the

election, and talk about the range of options, and they could reject it or take it up, right? >> right. one of the things helpful for our viewers to understand is the amount of time between the options for the supreme court could be vast, so they could, as it was just suggested to you in the last segment, kick it back down to judge chutkan and leave her in a position to start scheduling the trial, maybe eight weeks later because that's the amount of time we roughly have lost. however when the supreme court gets a petition, they can hold on to the petition in conference for as long as they want. i am reminded here of the "new york times" recent blockbuster reporting in the dobbs case where the court kept saying to

the public, we are holding on to the case, and they were not going to tell the public about the decision for months, and the idea was floated, what if this case comes too late and what if now is already too late and the supreme court can't responsibly hear the case by june, and maybe they don't want to get it done until october when the next term starts, that's effectively saying this case will never be tried or any of the others for that matter before the election, because donald trump is advancing a presidential immunity defense in each of the three other criminal cases he's facing. the person scratching his head the most right now is judge juan rasshan of the new york supreme court -- >> the hush-money case.

>> he's ready to start his trial on february 25th, and he has a hearing -- >> why wouldn't it go? donald trump files a cert petition, and without further guidance with the supreme court or knowing whether the supreme court is going to undercut me, am i going to have a trial without knowing whether or not this guy's presidential immunity claims has teeth to them? i have heard it from the d.c. court of appeals but i have not heard it from anybody that has any real precedent-making authority over me, and he may think i am frozen in time effectively until the supreme court gives an up or down ruling. >> yeah, he's coming down the pike here. >> that might be a bargain that

alvin bragg, the district attorney, is a gamble he's willing to take. this is the state case, about whether he falsified his business records to bury the allegations about him and stormy daniels, and the district attorney said he falsified his records to dupe people into voting for him, and knowing it could hurt him in the election and that's why he did it, and he disputes that and says he did nothing wrong and it was on the up and up, and if i am alvin bragg and i am the only one that has a trial date, i might go ahead and proceed with that. >> and on page 39 of the opinion, and the reason i want to go back to it is because we are in an election year. donald trump wants to return to the office of the presidency, and they write in this opinion,

former president trump alleged efforts to remain in power despite losing the 2020 election were, if proven, an assault on the government, and they go on to write he ejected himself into a process in which the president has no role, the counting and certifying of the electoral college votes. katharine, it sounds like they want to send a message, and that they feel this opinion may have weight when it comes to protecting the integrity of america's democracy? >> exactly. and many in ways, you remember vice president -- former vice president mike pence said that donald trump put himself before the constitution, and he, vice president pence refused to do that when they asked him to reject the votes, and this

decision is a message, i believe. i agree with neal, and the supreme court just might say we are not going to touch this, but i agree with lisa, if they do decide to touch this, they will be the reason why donald trump does not get tried before the election. as for the hush-money case, all of the acts in the indictment occurred in 2017, which was during his presidency, so that's where that presidential immunity defense will come up. >> thank you all so much. obviously much more to come in our special coverage with josé diaz-balart who picks it up right now. good morning, 11:00 a.m. eastern, and 8:00 a.m. pacific. we begin this hour with the breaking news at this hour, and the d.c. appeals court denies trump iun