stark distinction the difference between this case and mr. trump's case. special counsel wrote, and i quote, several material distinctions between mr. trump's case of mr. biden's are clear, continuing the probe. most notably, after giving multiple chances to return classified documents, to avoid prosecution, mr. trump allegedly did the opposite. according to the indictment, he not only refused to return the documents for many months, he also obstructed justice by enlisting others to destroy evidence and then to lie about it. in contrast, mr. biden turned in class classified documents to the national archives in the department of justice, consider the search of multiple locations, and including his home. i've seen the headlines since the report was released about my willful retention of documents. this is not only misleading, it's just plain wrong.

on page 215, if you had a chance, i know it's a lot, it's a thick document, on page 215 the special counsel found the opposite. here's what he wrote. there is in fact a shortage of evidence that i will retain classified materials related to afghanistan. on page 12, special counsel also wrote, for another documents, the decision to decline criminal charges was straightforward. the evidence suggested mr. biden did not willfully retain these documents. the evidence said i did not willfully retain these documents. in addition, there is some attention paid to some language in the report about my recollection of events. there is even reference that i don't remember when my son died. how in the hell deer he suggest that? when i was asked the question i thought to myself, it was none of your business. let me tell you something. some of you have commented.

i was aware since the day he died, i wear the rosary he got from the lady of -- every memorial day we hold a service remembering him, attended by my friends and family and the people who loved him. i don't need anyone, i don't need anyone to remind me of when he passed away. the simple truth is, i have sat for two days of events, going back 40 years at the same time i was managing an international crisis. their task was to make a decision about whether to move forward with charges in this case. that was their decision to make. that's a council decision to make. that's his job. they decided not to move forward. for any extraneous commentary they don't know what they're talking about. it has no place in this report. bottom line is, the matter is now closed. you continue what i've focused, on my job of being president of

united states of america. i thank you, and i'll take some questions. >> president biden, something special counsel said in his report is that one of the reasons you are not charged is because, in his description, you are a well meaning elderly man with a poor memory. >> i may well be i am an elderly man. and i'm president i put this country back on its feet. i don't need the recommendations. >> how good is your memory? and how can you continue as president? >> my memory is so bad i can let you speak. >> has your memory gotten worse? >> my memory is fine. take a look at what i've done since i became president. none of you thought i could pass any of the things i got passed. how did that happen? i guess i just forgot what was going on. >> mister president, voters have -- how do you know and do you think it's important -- >> only by some of you.

>> mister president, [inaudible] do you take responsibility for being careless with classified material? >> i take responsibility for not having seen exactly what my staff was doing. it's the things that appeared in my garage, things that came out of my home, things that were removed not by me by by my staff. >> [inaudible] >> for months when you are washed about your age, you responded by saying watch. me the american people have been watching and they have expressed concerns about your age. >> that is your judgment. that is not the judgment of the press. >> they expressed concerns about your mental acuity, they say you are too old. mister president, in december you told me that you believe that there are many other democrats who could defeat

donald trump. so why doesn't have to be you now? what is your answer? >> because i'm the most qualified person in this country to be president of united states in finish the job i started. >> [inaudible] >> mister president [inaudible] >> i did not share classified information. i do not share with my ghostwriter. guaranteed i did not. >> but the council -- said >> no, they do not say that. >> mister president -- >> let me answer your question. the fact of the matter is, i wouldn't want repeated, i didn't want him to know i didn't read it to him was that i had written a long memorandum to president obama why we should not be in afghanistan. and it was multiple pages. and so what i was referring to i.c.e. unclassified, i should have said it should be private because it was a contact between the president and vice president. as to what was going on. that's what he's referring to. it was not classified

information in that document. that was not classified. >> [inaudible] >> he called on me. when you look back at this incident, is there anything you would do differently now? and you think a special prosecutor should have been appointed in the first place in both of these cases? >> first of all, what i would have done is oversee the transfer of the material that was in my office, in my offices. i should have done that. if i had gone back, i didn't have the responsibility to do that, it was my staff that was posed to do that, and they referenced austin in the report. and my staff did not do it in the way that, for example, i didn't know how half the boxes got in my garage until i found out staff gather them up put them together and took them to garage in my home. and all of the stuff that was

in my home wasn't finally cabinets the were either locked or able to be locked. it was in my house. it wasn't out in mar-a-lago in a public place. none of it was high classified. you didn't have any in that red stuff on it, around the corners. none of that. and so i wish i had paid more attention to how the documents were being moved. i thought they would be moved to the archives. i thought all would be moved. that's what i thought. and what was the last party or question? >> whether special counsel should've been in point and in this case and in the case of your rival former president trump. >> i think special counsel should have been appointed, and the reason is because i did not want to be in a position that they looked at trump and weren't going to look at me. just like they looked at the vice president. the fact is, they made a firm conclusion. i did not break the law. period. thank you all very much.

>> [inaudible] >> the hostages negotiation, look, i'm of the view, as you know, that the conduct of the response in gaza, in the gaza strip, has been over the top. i think that, as you know, initially the president of mexico, cc, did not want to open the gate to allow humanitarian aid to get. ian i talk to him. i asked him to open the gate. i asked bibi to open the gate on the israeli side.

i pushed him to get humanitarian aid into gaza. a lot of innocent people starving, in trouble, dying. and it's got to stop. number one. number two, i was also in the position that i am the guy that made the case that we have to do much more to increase the amount of material going in, including fuel, including other items. i've been on the phone with the qataris and with egyptians, the saudis, to get as much aid as we possibly can into gaza. they're innocent people and women and children also in bad need of health. and so that is what we are pushing. pushing very hard now to deal with this hostage cease-fire, because, i've been working tirelessly in this deal. how can i see this without revealing? to lead to a sustained pause in the fighting in the actions taking place in the gaza strip.

and because i think if we could get the delay for that, the initial delay, i think that we would be able to extend that so that we could increase the prospect that the fighting in gaza changes. there's also the negotiations. you may recall in the very beginning, right after, right before hamas attacked, i was in contact with the saudis and others to work out a deal where they would recognize israel's right to exist, make them part of the middle east and recognize them fully in return for certain things that the united states would commit to do. with a commitment that we were proposing to do related to, well i'm not gonna go into detail, but one of them was to deal with the protection against the arch amenity to the northwest, the northeast, i

should say. the second one, by providing ammunition and material for them to defend themselves. coincidentally, that is the timeframe where this broke out. i have no proof of what i'm about to say, but it's not unreasonable to suspect that the hamas understood what was about to take place and wanted to break it up before it happened. >> [inaudible] >> everybody, hold for a moment. >> president biden, speaking live at the white house right now. this is press conference called on short notice. the president making brief remarks and taking a series of questions from the very animated press corps. a lot of cook often e in the room. but the president doesn't often take questions at live press events. and so making news there, including right up until the last moment. so i want to go to you on the presidents remarks on israel there at the end.

going some distance further than he has previously in terms of describing what has been happening in gaza. >> he was about to exit the room. he came back to answer questions specifically about israel. he wanted to talk about it. he used the phrase over the top to characterize the israeli campaign in gaza. he had to use the word indiscriminate to describe the body in a private event, at a fund-raiser. this was by far the most forward lee critical of the netanyahu government's approach and gaza he has been on the record and in public. he talked at length about the reporting we have seen that there are intense talks for negotiations, for an exchange that would essentially be a pause or cease-fire in hostilities in exchange for hostage releases, the hostages to be released. this is the latest iteration of the deal that netanyahu rejected yesterday in a long speech he gave to the israeli

public and in english publicly. but he clearly is pressing on. that he is pressing on humanitarian aid. it was the most striking pivot the president has made in public in his criticism of the netanyahu and unity cabinet of war cabinets management of the war effort in gaza. >> also talking about the timing of the hamas attack in israel and what was going on diplomatically. he said i have no proof for what i am about to say, not coincidental in terms of how they timed the assault the way they did. lawrence, let me go to you in terms of the basis for this prince conference and the bases for the presidents quite strident remarks at the top, not the central conclusion of special counsel hur's -- central finding is biden shouldn't be charged, but rebutting forcefully the way

that robert hur explained his reasoning. >> especially this line the president quoted, where the report refers to him as a well- meaning elderly man with a poor memory. what is the word elderly doing there? and poorer memory, what is a test of that? might that lead on trump saying i don't recall 400 times under olds in the same deposition? is that a good test of it? the idea that witnesses over a 40 year discussion, 40 year discussion, don't remember everything or that someone who graduates from college in june can't tell you where the diploma is in september, that seems to be a condition that this special prosecutor doesn't understand in the human mind. so i'm going to be fascinated when i can get into all these hundreds of pages to see what is it that makes you stress of a lack of memory in this particular case? where you have this completely cooperative witness, and there

has never been a witness under oath anywhere being questioned over a period of years of that witnesses life where they haven't said i do not recall. it is impossible to ask witnesses questions where the answer will not be i don't recall. and if you don't get the response, it just means you didn't ask enough questions. >> can i speak on that? i had the same thought. it's very standard lawyering to advise people, even when in doubt or think you might remember, if you can credibly say i don't recall about something, that the standard legal advice. it has nothing to do with the age of the person giving the deposition. >> when you're under oath you don't lie. if you do recall you have to say. but if you can't -- >> that's the whole point. because of those standards, the extra burden that you don't want to get anything wrong, but you err on the side of i don't recall, i don't remember, unless you specifically do, and if there's a thing that might seem minor and you're not sure you're being asked about a specific aspect of it like was it in the morning that meeting or the afternoon? you had the meeting that day?

did you refresher? notes i don't recall what time of day. oh my gosh, you're 25 and you can't tell the morning and night apart? i will tell you this, because it to get into all of it, but the president came out and spoke tonight because on the one hand he is very good news. this exhaustive investigation, led by a trump era holdover prosecutor, cleared him of wrongdoing related to the classified documents. good news. but he has a particular piece of bad news in the, air which is that it seems like a cheap shot, derogatory attacks on him, on which i wouldn't call normal course of investigatory material. maybe mr. hur who would be better suited to be a white house physician. but he had to go and get a medical degree to. there's no relevance to his views of the presidents overall memory. if it's specifically to the mental criminal intent, mens rhea, criminal intent, and remember, didn't mean to do, it sure. but talking about how, for

example, the president remembers or discusses his son's death and mr. hur's view that that tells you something as soon as i saw that today i thought wow that's a real partisan kind of towel in a report that has a good news legal headline. >> and the president is showing absolute rage at that point tonight. >> there was one adverb and to killer that struck me, which is painfully, which the author of this report, presumably mr. hur himself, says that the presidents memory was painfully -- >> some of the tapes i heard were painfully slow. >> painfully slow, that's right. and i just thought, who is in pain? that adverb is such a, it's doing so much work editorially. you are in pain because it takes too long? it's clear, just contained in that adverb is this siren call that is leaping off the page about him understanding exactly how this is going to resonate. >> a little political footnote

to special prosecutors. what should be noted is that this is a democratic president being investigated by a republican special prosecutor, which, prior to donald trump, is the way it's supposed to be. when a special prosecutor was investigating donald trump, it was a republican. he's the first one who got someone from his own party as his special prosecutor. and trump thinks that's the way it should be. and if you are republican like robert mueller and you're not a trump republican, he thinks that's unjust. trump thinks the only people who should ever be allowed to investigate him if he's ever gonna be investigated, have to be real trump republicans. this is the old-fashioned way. you get a republican to investigate the democrat, and this is a product of a republican who then turns over cards to show that he's kind of a wiseguy partisan republican. >> i think there are a couple of things that struck me. number one, you talk about the timing. it brings together what you were saying in what you are saying, is that he also noted

at the time he was being questioned, it was around, shortly thereafter, after the october 7th attack. so he was a little focused on other things. he had a lot on his mind. he was saying he was being questioned and that is one of the reasons he might not have remembered every detail. but the point that lawrence is making i think is true. a lot of people have asked why there was a special counsel to investigate donald trump? the justice department could simply have investigated donald trump, who was no longer president of united states. but it took three years to get those cases online and on board because there was this need to have a special counsel for the former president. this actually made sense. the president united states but then to the snark of it, it's only on page one that the special counsel described mr. biden's self involved. he has long seen himself is a historic figure. he started out by saying he believed his decades in the senate made him worthy of the presidency and collected

artifacts. that's actually page one and two. >> that's how it starts. an executive summary. if you're only gonna read one thing, this guy thinks he's really important. he is the president of the nine states. it was something wrong with? that >> they started by saying he's very self involved and thinks he's the most important guy. then by page -- they say but we don't think that he would be convicted because a jury might empathize with him because he is a sympathetic well-meaning elderly man with a poor memory. so it really is sort of nasty and snarky for no reason. >> andrew weissmann is with us when we asked him to be with us, not just for talking about what happened in the supreme court today but also on this point. andrew, kyrie just described what joy has also described, using the phrase cheap shot and derogatory attacks in terms of the way that special counsel went out of his way to make remarks characterizing the president and how he appeared

and these other sort of personal characterizations about the president that don't seem to have anything to do with his legal jeopardy or lack thereof. are we reading that right? that this is sort of extra stuff that he is guilty illegally here rather than just giving us the facts? >> yes, you are. i look at this as somebody who's been in the justice department for 20 years. i participated in writing reports just like this, except without the actives and adverbs. what do you do as a prosecutor's, you look at intent and knowledge. you look for facts, like obstruction of justice or cooperation. hear what you have is a case that is really similar to the case of mike pence. you have a need adequate proof of any bad intent, of knowledge. you have no evidence of obstruction, and you have evidence of cooperation. that ends. it that is why this case is

like mike pence's case. that should be the end of discussion from the prosecutor. what we have here is, we have that, and then you have, unfortunately, what i was concerned about, which is a repetition of james comey. the use of adjectives and adverbs that are not the province of the department of justice. that is not their role. it is completely irrelevant to the discussion. it is so clearly a partisan slight. i had the exact same reaction as joy, which is literally on page one it starts, where he is commenting on how he sees himself as a historic figure. we have comments about his memory. none of that is relevant because the whole issue here is, do you have proof that shows knowledge and intent to retain or disseminate

classified information? and the report says no we don't. in fact, it says there are innocent explanations we cannot refute. [laughter] that's the end. all of this other stuff is a testament to somebody who is appointed special counsel but who is within the department of justice, who has not followed the rules of the department of justice, which is, euphemistically known as you put up or you shut up, meaning you either decided that you're going to charge. no wonder cares about your personal views of the evidence and the people involved. >> exactly. that's the tragedy and the sort of -- of what james comey did, which set the standard. i want to say, at a personal level i should say, one of the people whose names is in the report is somebody who i've known and worked with on tons of different projects for years. so in this beautiful disclosure i have to say he's one of my

good friends. so that makes it awkward in terms of me covering this. but that's in the interest of transparency. ari, you said that this feels like a legal report that he is couched in a bunch of stuff that has nothing to do with this legal report. does any of that change the fact that this is sort of a cul- de-sac? legally this is it. there is no next step. >> this is done. it's a very good legal news for the president to have this done and done this early. they expedited that by fully cooperating. andrew weissmann knows better than most that the prior president did not cooperate with the open probe, did not say, you know what? if we sat down and i explained all this it would look better or not as bad as you think. but rather fought them tooth and nail. i want to be clear, legally, different presidents have taken different tax. but this is according to the doj and the traditions of trying to do fact finding, a positive that the president did sit down and do this.

and hur, again, now that we have this final report, hur looks like the trump holdover prosecutor looks like having gotten nothing that helps you get the most facts possible, a timely interview with a busy illegally protected figure, the president, and having got in the answers that helped him reach the conclusion there was no crime, he started to cherry pick the interview on what he perceives to be mr. hur's opinions, rugged tory information. lawrence hit on the head. it is standard ops to say i don't recall. the former president in other cases recently said it. and if you want to give him the age thing, let's call it what it is. this is ageism snuck into a report clearing the person of any wrongdoing. if you want to give me ageism, and people are told by lawyers all the time, you're better off leaning into i don't recall in misstating something to a federal officer or lying under oath. there's a lot of derogatory stuff. if this were a movie you'd say all gosh, other lawyers who

told the president you could stream this out and not do this interview, they might say this is why you should do the interview. i do think it is, a credit to the president that he chose to do fast cooperation. that's good for the system. politically, though, it's now being used against him. >> i'm i'm sure he had advisors right now saying don't do that. along with the standard-ness of i don't recall is the standard- ness of prosecutors and or litigators being annoyed by it. part of the peak you read in it is that peak. he's frustrated and angry that he didn't get more. >> you mentioned this, we should be clear here. age is the central narrative question here that this all revolves around in terms of its political repercussions, the way news happened today, the questions being asked him by multiple figures there. and in the end, what makes it such a useful political tool for people that want donald trump to be elected or want him not to be reelected is that the fact of his age is not

something you can rebut. you can't -- if someone says you are too far left, you can track to the center. the man is 80 years old. >> he rides a bike. >> he is the a.g.'s. and so it's a very useful political attack for that reason. >> let's bring in white house correspondent mike memoli. mike you've been covering joe biden, covering president biden for years. can you give us any insight into the white house decision to put president biden tonight at the podium and to have him take questions? to have him show some emotion, some anger, to show a little lit in terms of the way that he spoke at the fox news correspondent there, saying i think i'm doing fine, my only mistake is that i keep calling on you. can you give us insight into the white house and the president's thinking about this? >> absolutely. and my conversations with biden advisers, up until the beginning of the week, they were prepared for a report to come out that they knew would clear the president of any

wrongdoing, in part due to their fulsome cooperation, they were worried that absolute legal case so they would see a repeat of the comey matter with hillary clinton in 2016 in casting a political judgment. as bob bauer would put it in a statement today, he had committed investigative excess because of concern with they the way house republicans would ultimately treat this investigation and the oversight that they were going to be providing to it. what's interesting is that three days ago the white house advisers lawyers sent a letter to mr. hur. your concern changed from this investigative access to the judgment about age. in a long memo responding to what during what's known as a privilege review, they really questioned why hur was making these judgments about the presidents memory in a way that he was not doing for any of the other witnesses that testified and also had memory lapses. so they were clearly concerned about this. as to why we see the president tonight it's because this is

how you fight back. it was notable when they announced this news conference tonight, the white house and one adviser said let's f go. we know what the f stands. for that's the unscripted biden that we always felt worked well politically. you heard that humor, saying his memory obviously laps because he forgot not call on peter doocy of fox news first. they have a long history as well. but i was struck by the anger he flashed in talking about his son, beau. the special counsel makes reference to the fact that he didn't appear to remember when that was. the president saying tonight how dare he. it was a thought going through his mind when he was asked that question. of course he remembers that. and that's, i think, a moment that will stick in the biden team has always felt is what resonates with voters, much more than anything else here. he did of course respond to the substance of the legal case. of course he wishes that his staff had handled the documents better. there's fascinating detail about the ways in which president biden, as vice president, was keeping

meticulous notes throughout his time of office. he referenced that memo he wrote directly to president obama about afghanistan. i actually was fascinated about it. i had not seen this before, not heard about this before. president biden using that while he was vice president, considered potentially resigning as vice president, so strong with his opposition to the position obama ultimately made in december of 2009 about the surge. but the fire that we saw from the president tonight, it was important for the white house to get that out there as quickly as possible. this is a fight for his political livelihood, and they wanted to set the tone right tonight. >> i just has to ask is a matter of white house, something more than style, something less than art, one of the things that just watching through the monitor, watching it live as it happened, is the sort of the audio mix was the president talking and then everybody else in the room

talked at. once white house staff have a choice as to how to handle logistics of an event like that. and with a less lets f go is part of that actually. not interfering to try to choreographed those questions and make it more organized, make it more orderly and just letting it be a bit of a scrum. is that part of it in terms of capturing the energy and letting the president just get out there and throw some punches? >> you can see the smile on my face, it's because many advisers in the white house, let's just say have low regard for colleagues in the press corps. i think they look for sometimes opportunities, frankly, to put reasons for that disregard on display. it would be nice to see my colleagues in the press corps in the room tonight play nice with one another, maybe take turns. but this is a competitive situation, and we have every right to try to get your

questions out individually. i think the white house knows. that i did notice the president glancing down as he turned to take questions, which made me think that perhaps he did have individually but certainly the moments are called for a glass seven quick efforts for your question into the president. sometimes you do see the president stand back and allow the noise to present itself and to, and literally the person in the room with the most power in that situation. >> where the phrase above the phrase comes from. exactly. mike memoli. so grateful to have you with us tonight on this high consequence. thank you. all right, so we are here tonight, we are gathered here today, my friends, to do a recap of what happened in this historic event at the united

states supreme court. we took a bit of a detour to cover that breaking news from the white house. we're gonna take a quick break right now, and when we come back we're going to bring you our official primetime recap of today's historic proceedings at the united states supreme court. here we go. we'll be right back. right bac. 5% apy? that's new! yup, that's how you business differently. ♪♪ we're building a better postal service. all parts working in sync to move your business forward. with a streamlined shipping network. and new, high-speed processing and delivery centers. for more value. more reliability. and more on-time deliveries. the united states postal service is built for how you business. and how you business is with simple, affordable and reliable shipping. usps ground advantage.

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>> welcome to our primetime break out of the historic proceedings. i'm rachel maddow, with my colleagues lawrence o'donnell, joy reid, ari melber, chris hayes. happy to have you on here.

no cameras are allowed in federal court rooms, including united states appearing, court today for the arguments about whether former president trump should be disqualified for office for having engaged an insurrection against the u.s. government, the justices did allow for the sound of the proceedings audio to be livestreamed. here on msnbc, we carry the audio of those oral arguments live and in full. starting just after 10 am eastern time. but we also know that most people have lives. and jobs. and school. and other responsibilities that might make it hard for them to take two hours out of a thursday to stare at an audio speak for hours trying to figure out if that was gorsuch or alito yelling at that poor lawyer. so because of that we are here to recap what happened in primetime. in the 1970s, watergate healings were broadcast during the workday. recognizing how consequential unimportant those were, news networks during that time started recapping each day's watergate hearings at night on

tv in primetime so no one would miss out on that incredibly important history in the making. we then did the same. during the daytime hearings of the january six investigation in congress in 2022. we know from what we have heard from you, our beloved viewers, but that was valuable, that was a useful saying. and so here we are, together, again, tonight, with basically the same approach. the united states supreme court is now considering whether the leading candidate for the republican presidential nomination should be banned from running again or potentially might it be okay to allow him to run again to allow him to be on the ballot, to allow him to compete and potentially even when the election, whereupon only then would he be prohibited from actually taking up the job? now, why would you allow someone to run for an office if they are ineligible to hold that office? i don't know. but for the non lawyers among us, i think we can all take comfort in the fact that that

idea sounded just as cockamamie and nuts today at the united states supreme court as it would if you tried to explain to somebody on a street corner. >> i think it would create a number of really difficult issues if the court says there's no procedure for determining president trump's eligibility until after the election. and then what happens when members of congress on january 6th, when they count the electoral votes, say we're not gonna count electoral votes cast for president trump because he's disqualified? that's kind of discern french vice meant and constitutional crisis in the making. and all more reason to address these issues now on a full evidentiary record so everyone can have certainty before they go to the polls. >> if we think that the states can't enforce this provision, for whatever reason, in this context, in the presidential context, what happens next in this case? i mean, is it done? >> if this court concludes that colorado did not have the

authority to exclude president trump from the presidential ballot on procedural grounds, i think this case would be done, but i think it could come back with a vengeance because ultimately members of congress may have to make the determination after a presidential election if president trump wins about whether or not he's disqualified from office and whether to count votes cast for him. >> if he might be ineligible to hold office in the united states. but states aren't allowed to keep him off the ballot. then how does the constitution's ban on insurrectionists holding office getting forced? just think about it logically. if states can't enforce it by keeping people off the ballot before the election, then congress would have to enforce the ban after the election. this would mean congress would have to decide after the election but before inauguration on, say, january six, 2025? they would have to decide then and they are whether they're going to count electoral votes

for trump or not, based on whether or not congress believes, at that point, the trump is eligible or ineligible for office, depending on whether in their infinite wisdom, congress thinks he engaged in insurrection the last time around. congress will just work it out in congress, on the spot, on january 6th itself. what could possibly go wrong? you just heard jason marie there, who did most of the arguing today for the plaintiffs, who was successfully sued in colorado for keeping trump off the ballot. we're gonna speaking live with him tonight. but that same point of boathouse stranger would be to do what trump's lawyers propose, two to decide whether he's eligible to be president until after he has potentially been elected president. that same argument was made in a different way by the second lawyer, the colorado's solicitor general who today also defended colorado taking trump off the ballot.

>> the petitioner contends that colorado must put him on the ballot because of the possibility there would be a supermajority act of congress to remove his legal disability. under this theory, colorado and every other state would have to indulge this possibility, not just for the primary, but through the general election and up to the moment that and elect ineligible cabinet was born into office. >> in other words, do not make us do this. in other words, do justices, rule that he's eligible, rule that he's ineligible, but do not force the situation in which he must be allowed to run but he might not be allowed to serve if he's elected. if you thought last year six was bad, wait to see what you would unleash for the next one if we followed this course. his chief justice john roberts today. >> counsel, what if somebody

came in to a state secretary of state's office and said, i took the oath specified in section three, i participated in an insurrection and i want to be on the ballot? does the secretary of state have the authority in that situation to say no, you are disqualified? >> no, the secretary of state could not do that consistent -- with because even if the candidate is an admitted insurrectionist, section 3 still allows the candidate to run for office and even win election to office and see whether congress lists that. >> even though it's unlikely or difficult for individual says you know, i am an insurrectionist and i have taken the oath, that would require two thirds of votes in congress. that's some pretty likely scenario. a >> pretty unlikely scenario. that's 0.1 from today's supreme court arguments. the proposed remedy here from

trump side with congress has to in force the ban on insurrectionists serving in office, that ban can only be enforced after the election, that trump has to be allowed to run even though he might not be allowed to actually serve if he wins. the practicalities of that, what that might mean for the country, those implications that are both bizarre and daunting, is described by lawyers in the case today, i think that's point number one. now let's talk about a second fundamental point that didn't necessarily go as expected today at the court. it's that the very basic question of whether or not former president trump did engage in an insurrection. everybody knew this was going to be something that was going to have to come up today. but there is less discussion on this point today than many observers expected. what they had was punchy. let's start with justice ketanji brown jackson in jonathan mitchell, the lawyer who today argued former president trump. today argued f president trump.

concluded that the violent attempts of the petitioner supporters in this case on january six qualified as an insurrection, as by section three, and i read your opening brief to accept that those events counted as an insurrection, but danya reply seemed to suggest that they were not. what is your position as to? that >> we never accepted or conceded in the brief that this was an insurrection. what we said in the opening brief was that president trump did not engage in any act that could be characterized as such. >> your argument that it is -- your reply brief says it was not because i think you say it did not involve an organized attempt to overthrow the government. >> that's one of many regions, for an insurrection, there needs to be in organized, concerted effort to overthrow the government of the u.s. through violence. >> a chaotic effort to overthrow the government is not

an effort? >> we did not concede that it was an effort to overthrow the government either, justice jackson. none of the criteria is met. it was a riot, not an insurrection. the violence was shameful, all those things, but it did not qualify as buan extortion, as t term was used in section three. >> thanks. if it was chaotic, it was not an insurrection. the way you can tell us something is an instruction because they march in lines, part of what does a little right after the with anything? justice brett kavanaugh elicited some icof the stronges push at this point, the point of whether this was an insurrection and the implications of that. he elicited some of the strongest pushback on that today from jason murray, one of the lawyers in colorado. >> in trying to figure out what section three means to the extent of its elusive language or vague language. what about the idea that you should think about democracy, think about the right of the

people to elect candidates of their choice, of letting the people decide. your position has the effect of disenfranchising voters to a significant degree. what about the background principle, if you'd agree on -- >> a good like to make three points of that, justice kavanaugh. the first is that constitutional safeguards, but for the purpose of safeguarding our democracy, not just for the next election cycle but for generations to come. second, section three is designed to protect our democracy in that very way. the framers of section three new from painful experience that those who violently expose their oath to the constitution cannot be trusted with our whole power again, because they could dismantle our constitution of democracy from within. they have created a democratic safety valve. president biden can go asparagus for amnesty vote, but unless he does, that -- from insurrectionists. third, this case illustrates

the danger of refusing to apply section three as we're in, because the reason that we are here is e that president trump p tried to disenfranchise 80 million americans who voted against him, and the constitution is not required that he be given another chance. >> thank you. >> the constitution does not require that he be given another chance. the constitution protects us from insurrectionists. so, we'll talk tonight about the justices, discussing what it would mean to prosecute trump federally for the crime of insurrection, rather than having adjudicated, for example, in a colorado trial court. we'll talk about the justice system debating trump's lawyers claims that he is the only former u.s. president who can't be banned from office for committing insurrection. all the others would be banned from office for committing insurrection but trump, personally, can't. we are going to talk about the justices asking why one state ic should be able to do something this consequential, something when the contestants went out like cannibals, but the answers were pretty good.

we have a lot to talk about tonight, but let's start with these first couple of takeaways here. was this an insurrection, and if there is a ban in the constitution on insurrectionists holding office, but you can't enforce it by preventing an eligible candidates from running for office, then how exactly does that ban get enforced? our email burr, you are in the r room today, when it happened. you are there for the arguments. first of all, let me ask you to critique my summary. the tickets for it to pull out those points as some of the pillars on which this argument was held up? >> i think it's very fair. it's the first time that we have seen the actions of the insurrectionists discussed by the supreme court. >> in terms of the argument about -- on the point of insurrection, i felt like i was going to be here a lot today about what counts as an insurrection, that snuck from justice jackson was priceless, but we did not hear a lot of substantive other discussion about what it takes to call something an instruction. does that tell us something

important about where they just see their sort of, the edge of their job description here, in terms of what they ought to consider? >> it also speaks to how bipartisan this was, if you go by the differences disappointed by different parties, based on the questioning, which is all we have to go on, i would give you eight or nine votes likely against the colorado trump a ballot ban. that's not because all eight or nine at the people or soft an insurrection. it's because the things that you race, and we heard some of the questioning about. i'll give you a detailed legal answer if you want, but i'll start with something simple, which is, it was clear by the end of the argument that most of these people do not want to go near ballot bands. the reasoning came second. it was more honest than usual, they said we don't want to do this. we don't want to cosign this. how do we get out? i would liken it to, if anyone at a destination wedding invite that they are not excited about. these people used to know

better, for a while back, and it's in antarctica, and our first like, look, straight up, that is far away, i heard it is cold weather. also, i think it's expensive. tickets, are barnstorming all you can go. >> sore back -- >> how close are we? any of those things might also be true, and someone then my come to you and say, there's a supercell, because not many people want to go to antarctica. even if it was not the ticket, there are other reasons. that's what it felt like to me. so, atif you're looking for thi to be the case that stops trump, i would tell you -- not you, i mean the viewer, anyone listening, the citizen. if you're thinking, this the courts to work on a nonpartisan basis, in some ways, we saw that answered with how much it was like that. they then jump and briefly to your legal question. the big thing was, even if it is an insurrection or something that should be kicked off the ballot for, who decides that? is it just a random secretary of state in one state, and we have a lot of different types of ways that we pick secretary

of states, they vary in partisanship? is it the justices at the state, and chief roberts put it, as blunt as he could, not talking law or attacks but he said, only, if we did allow this, other states would punch back. if we get them wthe power and say, any state can do this, then they all will be knocking each other on the ballot. let me tell you, rachel -- >> justice roberts raised that issue, in other justice raise that issue as well. good answers from the issue from the lawyers representing colorado. >> a very substantive answer, which is that there was an insurrection televised. there is only one people that called them to town. i even had insurrectionists io popping up everywhere, it's not factually true. the courts concerned about, that which i think includes -- >> i think justice jackson was a biden appointee, well versed on how they tried to stop at then-president biden from coming into office. i don't idthink he is minimizin an insurrection, i think her point is, yes, we will still run into who can resolve that. you can be factually right but still have an arms race across

the states, and that is a concern for the court. this became -- if i was going to bottom line it legally, this became a debate about the remedy, that they should be dealt with in some other part of government. the problem is you. >> let me stick on that for a second, already, because we're talk in more detail about the parade. what if a state can take a person on the ballot, what would that mean. there would be retaliation, there would be unreasonable actions taken by other states to take other people off the ball. we'll talk about that a little bit, but on this issue of whether or not the states to this or somebody else does, we also got a parade of horses today about what happens with the state dadoes not do it. if there is a ban -- and it can't be enforced by the states, then asked to be enforced by congress, which is inviting another january 6th disaster. that is the rejoin or, it's onen way or the other. you may not like the states doing, but they don't do it, the caucus will have to do it. that will be a disaster to.

we've seen that before. >> the sound like a lawyer, i think that is a non frivolous point, a legitimate point. we saw in the oral argument, you're offering chaos, i see you with chaos. >> that the, duthie don't. >> there's a saying in the law about constitutional hardball. this is beyond hardball, this is constitutional fragrant fouls or constitutional violence, whatever you want to call. trump and his fans, he is now convicted fence, not convicted of sedition charges with the, he was n for something else, bu his fans and people he summoned, many convicted of sedition, they had no sparked this back and forth. well here as you mentioned, with a lawyer later tonight, who mentioned having gone down the road, there needs to be strong remedies pushed back. having said that though, i think that the justices, including the democratic appointees basically said, yes, but not at the state level. figure out some other bar and what you are proposing at the

end of the argument here doesn't scary, let's point on that for now. our special coverage of today's historic supreme court hearing, it's just getting started. still to join us, as ari mentioned, the attorney for the california voters in this case, who argue today in the court, to summer it would be with us live, stay with us. >> states had the power to ensure that their citizens electoral votes or not we state on a candidate who is constitutionally barred from holding office. states are allowed to safeguard their ballots by excluding those who are under age, foreign born, for a third presidential term or as here, those who have engaged in insurrection against the constitution in violation of io the oath. i ofwelcome the courts question o make it last longer. say hello to your fairy godmother alice and long-lasting gain scent beads. part of the irresistible scent collection from gain!

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this ad? typical. politicians... "he's bad. i'm good." blah, blah. let's shake things up. with katie porter. porter refuses corporate pac money. and leads the fight to ban congressional stock trading. katie porter. taking on big banks to make housing more affordable. and drug company ceos to stop their price gouging. most politicians just fight each other. while katie porter fights for you. for senate - democrat katie porter. i'm katie porter and i approve this message. two leading candidates for senate. two very different visions for california. steve garvey, the leading republican, is too conservative for california. he voted for trump twice and supported republicans for years, including far right conservatives.

adam schiff, the leading democrat, defended democracy against trump and the insurrectionists. he helped build affordable housing, lower drug costs, and bring good jobs back home. the choice is clear. i'm adam schiff, and i approve this message. justice alito? is there any history of state to c-section three as a way to bar federal officeholders? >> not that i am aware of, justice alito. >> not that i am aware of, this is toledo. nope, this is not before, i wonder why that is. welcome back to our primetime recap of today's supreme court proceedings, on whether former president donald trump is eligible or ineligible to ever again stand for office in the united states, after what happened the last time. what you just heard there was a nice short jab from conservative justice samuel

alito, answered by president trump's lawyer jonathan mitchell today. the real rejoinder to what -- excuse me, what justice alito was asking there came if you minutes later, from a lawyer on the other side. the lawyer for a lot of voters, it's a summary, in a back and forth with chief justice john roberts, in which the chief justice essentially says that the lawyer, hey, this is crazy that we had to decide something like this, isn't it? the lawyer response, yes, it's crazy, but the reason it's crazy because they're running a guy as candidate for president who just recently told his fans to overthrow the u.s. government. yes, and that is crazy. that has never happened in the country before at least since the civil war. yeah, it's crazy, and, yeah, you do have to put up with it. listen. >> counselor, what do you do with -- the consequences of your position. if colorado's position is upheld, surely, there will be

disqualification proceedings on the other side and some of those will succeed. some will have different standards or proof. some will have different rules of evidence. although, my predictions have never been correct. i would expect that a good number of states will say, whoever the democratic candidate is, you're off the ball and, others, four republican candidate, you're off the ball. it will come down to the handful of states to decide the presidential election. that will be a daunting consequence. >> certainly, your honor, the fact that there is potential frivolous applications of a constitutional provision does not reason -- >> you might think that they are frivolous, but the people bringing them may not think it is frivolous. insurrection is a broad term, and if there is some debate about it, i suppose that will go the decision and then, eventually, what we will be deciding, whether it was an

insurrection, where they're when president did something, as opposed to somebody doing something else. when we do, do we wait until near the time of counting the ballots and go through which states are valid and which states aren't? >> there's a reason section three has been dormant for 150 years, because we have not seen anything like a january six since reconstruction. insurrection against the constitution something extraordinary. >> it seems to me you're voting the question which is that other states may have different views about what constitutes insurrection. now you say, it's all right, because somebody, presumably us, will decide, they thought that was an instruction, but there are wrong. maybe they thought it was right, and we had to develop rules for what constitutes an insurrection. >> yes, your honor, just like this court interprets other constitutional provisions, this court can make clear that an insurrection against the constitution is something extraordinary. in particular, it really requires a concerted group effort to resist the violence, not some ordinary application

of state or federal law. >> councillor, you're saying that someone, presumably us, would have to develop rules for what constitutes an insurrection? unfortunately, yes, sir, we have come to that moment in u.s. history. yeah, we will need to have some rules around this. joy reid, i don't think anybody thinks that the colorado petitioners are going to get their way from the supreme court today, but some of these questions, the way that they were raised and the way that the lawyers had to say, the supreme court justices, we're sorry we're here, but we are here. it's really striking. >> it's not like it's every day that people try to overthrow the government. to that question, you actually have some facts around which to organize an attempt to throw a random democrat off at the ballot in the republican state. it's not like you can just do it. let's just review the record here. donald trump was not just declared an insurrectionist because the democrats of colorado were mad. a bunch of republican

practitioners took this case to court. there was an actual trial, at which data thurmond and adjudicated based on republican petitioners, saying he tried to be an insurrectionist. fact number two, he was impeached, specifically, according to him, for supporting an insurrection. there are plenty of facts on the table that say that the point of what they are saying, with just a riot, it was not a right for no reason, because the people were not having a good day. it was a right to attempt to replace the winner of the presidential election with the loser of the presidential election, thereby to replace the government that was supposed to take effect would a government that was over. by definition, that was attempting to pull an insurrection and replace the government. i thought some of the arguments were so circular, and the idea that they can't adjudicate, can't make a decision here out of the fear, at some point in the future, democratic states with ten -- republican states

with then tried to say that different person wasn't insurrectionists, based on some of those facts, all of dozens happen, yeah, there would be an insurrection. >> again, alex, out but the state you. thank you for joining us. >> it's good to be here. this is something that was raised by both liberal and conservative justices today. the idea that if colorado done the whole thing, trump then, other states might retaliate by doing this in unfair ways to other candidates. the reply to that is, yes, you can also bring frivolous and malicious prospect actions if you ever get caught for anything in the criminal law. the idea is that our systems exists. the structure of government and testing exist in the courts, and, therefore, if somebody is going to unfairly retaliate or retaliate not based on the fact pattern that joyce is describing, then we catch that and we let it go through. right? >> well, here is what i will say. i think it's farfetched to suggest that all of the sudden, this will lead to a spate of efforts to get joe biden off of

the ball in red states, but i do think there is -- what did alito call it, manageable consequences? imagine, forget your biden, a match and you have a bunch of red states where donald trump placed on the ball and a bunch of boost eight for donald trump is oft about, that in and of itself is problematic. i don't even have to game out the scenario whereby biden is the victim of some -- related to this decision. you have to work out a scenario where donald trump's name does not appear on all the ballots in the united states. it's a huge problem. >> that is a problem that happens for third party candidates. there are candidates running as a third party, who get on the ballot in some states. it's a quantitative matter, not a qualitative matter. major party candidates don't tend to have that problem, but each state's ballot looks different. >> i am not arguing that that should be the reason for what they decide, but it seems really clear, as one person, among many, who sat looking,

watching a blank screen -- >> stared at a speaker. >> all of these justices seem very much less concerned with the textural interpretation, the originalism at the constitution and much more concerned roundly about the political reality that is ahead of them. to the degree that they may say it's not up to states to decide that this congress or the federal judicial system needs to decide this, in which case, you will inevitably have a lawsuit in the federal courts on the same day in store order. >> isn't that a consequence of the actual fact that our elections are decided by the states, that's actually the system. the states get to decide the election. to get the side who qualifies for their state. that is the system, so try to say that because states decide, and what you had to do essentially disenfranchise, right, all of the states where trump won the electoral college in that state, on january six, 2025, i say, oh, guess what, he's not getting a waiver.

who's getting two thirds of a vote in the house of representatives to get a ways waiver. you're saying let the people go vote for trump, go to 2025 -- >> but they are not going to use that. clearly, they are not going to do that. >> it's absurd. >> i would say that there is a real weird thing -- part of what was weird about today is that there is a sort of calvin ball that conservatives play with, their methodology on this court, which is a day left actualize mix-up when they don't need it. >> exactly. >> actual sum is like, look, we have our personal policy preferences, have outcomes that we want, we kept thinking about outcomes, we are debate looking ahead. the text tells us that everyone can have a gun in every public space of america in the year 2023, per ruin, and that's what we got to do. yes, if you got a kindergarten- er, walking around, you're like, sorry, that is constitutional demands. yes, there are pragmatic concerns that we should not do that. sorry, can't do it. so they do that, when they like the outcome, and then the moment they don't like the outcome, they just struck it

over, and we also took over the textualists today. i guess the weird thing that i want to say, the sort of pop on the other side of the hypocrisy is, personally, i am not excellence, and i think pragmatic considerations are a- ok to think about. actually, that is how we should be thinking about the constitution. i am a legal realness, and i think pollsters for -- richard posner, the judge who talked about this pragmatism. all of these pragmatic questions struck me as perfectly legitimate. the other thing -- to your point, joy, they are all apostates deciding to snuff. >> that's right. >> except in two places, bush v. gore, where the couldn't ratify, because the override it -- >> that's. right >> now, here, what are you talking, about states. >> state rights? >> we're going to let states do it? >> by the way -- >> i think we are. keep doing that, not to abortion. they literally said the opposite. they said in the case of abortion, you cannot apply a federal standard and for states

to live with it. we have to let the states decide. you see states get to decide whether women's wounds are owned by them, but states can decide their own election rules, when incessant the constitution that the elections are decided by the state. >> let me just say this, i love -- my favorite moment in oral arguments is when a justice is, like come on. seriously, that's what a lot of this comes down to. there's a certain part where amy coney barrett says you would be, the voters of colorado would be deciding the election for the whole country, take a lot about. that's not true, because there are a blue state anyway, but the point so holds. murray starts to say, your honor, no, we would just be deciding for the colorado voters. it is the case that we all understand, the implications here of the state action are absolute. >> that's what happened with florida, florida, florida, florida. three attempt on the bush v. court case for bush. for roberts to be the one to pose the question, why should we let once they decide, i don't know, ask yourself, in the year 2000, when you and

coney barrett and kavanaugh. >> that's a consequence to be the prohibition that clearly is in the constitution that says if you engage in an insurrection, you can't hold office under the united states or any state. if the consequence of the argument, the practical argument is, we can't as a state and forced to. >> congress has to. >> we are going to have congress in force, which will just be a scrum. >> you're not going to say. that >> if you can't do it, until the guy has been elected, when does congress step? in >> what they are saying, what they will write, i would bet a lot of money, is that congress has to pass an enabling statute that spells specifically the procedures by which all of got referenced today, the series of acts passed under reconstruction, some including called the reinforcement acts, were caucus has to specify a procedure because this is too hard to interpret for courts and too crazy to leave to the

states. congress has to exit anti possum statute that says how to do this and then we can do it, that's it. >> they say they won't do it. >> of course, they won't. >> and they say they pass a law that is open for the president, because i bring you to coy griffin, the trump cowboy, who was actually disqualified in the state of new mexico for holding office for some local office, county commissioner, and there was no enabling legislation needed to do that. what they are saying is, is a state law. but the point that they are saying is, you will have to pass it just for the president, because, ketanji brown jackson, justice ketanji brown jackson did get into this question of, why didn't the drafters of the 14th amendment include the president? i guess they did not have the lord imagination to understand any presidential candidates, you can be president can commit insurrection, so i did not specify. >> just a legal point, we are talking right now about the what, which is very important. most of the argument turned on the who, and one of the cases they talked about the most was the turmoil and a case, which is not a perfect case, by the

way. >> can you say the name of the case, it's turmoil, not a case about turmoil. >> you're right. >> very frustrating. >> the supreme court has previously held that if you add something, even something that sounds reasonable like, we don't want people in congress forever, right? and we want to have a limit on the amount of, time they said that actually is adding and eligibility requirement, and you cannot do that. yes, the what is super important. indeed, i would argue that the split on the court is about the white, and we might see that by the way on the immunity case that we are watching, but the who is, it's a federal requirement, a federal constitution but the 14th amendment, then, what states locally who about their local office is one thing but what they do above federal is different. the who here, i don't know, we have money down a lot tv how they will write the ruling. when we come back, you could be right. the other thing they could do is say, donald trump, whenever you talk about him, not only

has he been convicted of insurrection, but he's not been charged with insurrection or an insurrection like affronts, which would be insurrection or sedition. therefore, the who has to be some prosecutor or some other process at the federal level and not the state level. i know that is frustrating, by the way, it's annoying when the justices do it, but i'll do it too. i am nothing to agree with all of this stuff. i had to sit through law school, and then i sat through the hearing today. andy who is the. is there something more like a prosecutor or more like a federal thing, instead of its state thing? >> what happened then, let me ask you a question, what happens then if you get charged with u.s. code, about an insurrection, if he is convicted of that, he would actually be incapable of holding any office of the united states. >> i can answer that in a sense. he or anyone is toast of that happens. >> problem, the house january six committee was quite clear in its recommendation that donald trump should be charged for inciting an insurrection. jack smith did not charge it. so now, we have a case in federal courts, where trump could be convicted of

obstruction and any number of big felonies, except for citing insurrection. the question is, if he is convicted in one sentencing comes on, is disqualification from office part of the sentence? do this count as something? >> can i just say that had donald trump in charge with insurrection the way that january six investigation recommended, had even charge, today, there is no chance that brett kavanaugh would have sat there and then, like well, anyone could be convicted of insurrection. >> it's only because -- >> that is facts. >> alvin bragg -- >> if you only done that, exactly. -- >> it's called a legislative to the purpose. sorry, still to come, we got a lot more from today's supreme court hearing, including, the very, very poignant and -- moment where the lawyer for the pontiff's took a question from his old boss, no gorsuch. >> do you agree that the states powers here over its ballots

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mr. chief justice, and the court, we are here because for the first time since the war of

1812, our nation's capital came under a violent assault. for the first time in history, the attack was incited by a sitting president of the indicted states to disrupt the peaceful transfer of presidential power. by engaging in insurrection against the constitution, president trump disqualified himself from public office, as we heard earlier, president trump's main argument is that this court should create a special exemption to section three that would apply to him and do him alone. he says section three, disqualifies all oath breaking insurrectionists, except a former president who never before held other state or federal office. there is no possible rationale for such an exemption, and the courts should reject the claim that the framers made in extraordinary mistake. >> did the framers make an extraordinary mistake? >> welcome back to our primetime recap of the u.s.

supreme court's deliberations, or arguments today over whether or not former president donald trump should be disqualified from standing for office. jason murray is a denver-based lawyer whose argument helped convince the colorado supreme court that trump should be disqualified from colorado's ballot. today, mr. mary made his supreme court debut, representing six colorado voters who brought the initial challenge to trump's eligibility. in addition to more than a decade, this trial lawyer, mr. murray, has worked closely with two of the justices, who are up there on the dais today. he clerked for justice neil gorsuch, when justice gorsuch sat on the tenth court of appeals. he also court clerk for justice elena kagan at the u.s. supreme court. today, mr. mary appear before this justice is in a different capacity, making the case through them, that the ruling that he wanted colorado should stay, that donald trump should not be allowed on the call it about. joining us now live, after a very long, very stressful day, the summary. memory, congratulations on your

appearance in court today, thank you for making time to be here tonight. >> thank you so much, and i appreciate you having me on. >> i know that this is not your first time in that courtroom, and you are familiar with the supreme court procedure, and you have seen a lot of lawyers step up to the podium today, how was it for you to do it for the first time? >> certainly, a source of pride for me to get to argue in the supreme court for the first time and also to be able to appear before my former bosses. >> in terms of how things went today, i don't think that it is going to come as a surprise to you, for me to tell you that most observers, think that the case is not going your way. most observers think that president trump will be allowed to be on the ballot, that call about us decision to take him off the ballot will effectively be overturned by this court. i have to ask, if you shared the common wisdom, if you feel like he has a sense where the justices are going after what he went through in court today? >> i won't sugarcoat it, it is certainly seeming that the

justices are asking mostly procedural questions about whether the states had the ability to enforce section three of the 14th amendment. i will say, we got difficult questions, the colorado supreme court as well. when the colorado supreme court sat down to write their opinion, they realized we write the legal issues. we held out hope that the court gets deeper into the legal issues here, they won't realize that the laws and history is clear on our side here. certainly, they did have hard questions today. i don't think the court with the side ehrhardt case like this one without the court asking some questions. >> let me ask you to go back into some of the questions which i think you've got some of the hardest questions, at least, i am not a lawyer to a lay observer, thinking about some of the journalists who saw what happened today, you see some journalist reflect on what seemed like good questions about whether or not colorado, as an individual state, or indeed any other state, should have a role that would not

directly but effectively remove a presidential candidate from consideration by the voters of the whole country, that issue, that prospect was first a few different ways by the justices today, but i wonder if you take it holistically and address that criticism of the take that colorado supreme court and your clients brought to the court today? >> it's an important question, and i think it's based on a misunderstanding, because we learned today to ask the supreme court to allow them to decide the 60s for the nation. we were asking the u.s. supreme court to decide as a matter of constitutional law, whether donald trump is eligible to be president again, based on his own conduct and engaging in insurrection. that is not a political question for a state decide, that is a legal question for the court to decide. oh though the case came up through a state court, many important cases of federal law,

federal constitutional law come up through state courts, but once they're at the u.s. supreme court, is for this court to make the final decision that will govern for the whole country about the constitutional eligibility of the candidate. that was the case that we were trying to make today. >> i, jason, ari melber here. congratulations to you and all dealers today. it was a big case, a moment this one on one of the most difficult things to do, handle that hot bench with nine justices. congratulations to all of. you two questions, i don't know if you want to answer both of them, but given what you want to today. it's so hard, the whole thing is so fast and complex. is there anything where you get a do-over or a slender or marks or build on your answer. that could happen in any part of life. second, we discussed today on this panel, and it was clear in the courtroom, that it was bipartisan skepticism about wanting your team points, which

is that the insurrection was a unique and rare event. i wonder if there is a way to your argument and the brief, which matters sometimes even more than our oral argument or what he did today, that you could better sort of, to paraphrase a different legal standard say, yeah, and instruction is one when you know it when you see. it we are not going to have a ton of frivolous made up insurrection claims. if some bananas official and some a bannon estate says biden did instruction when he did an interview. you go, yeah, yeah, that was very different. that's a live tv documented insurrection. you know it when you see it. that's the question, do over and the? >> absolutely, let me take the first point first. i would not characterize it as so much of a do-over, as the fact that there were a lot of questions that were being asked, where i get ten words in before i get another question. it would not so much have a chance to respond, so one point i would like to emphasize now because we did not come up so much in argument is just how

clear -- how lucid the colorado supreme court factual findings were on the fact that president trump engaged in insurrection against the constitution. this is not some sort of secretive thing that relies on dubious witness testimony. this was in plain sight for everyone to see. we saw the tweaks. we saw his words. we saw his campaign manager the day of, his former campaign manager call this a sitting president asking for civil war. we saw that even after the capitol came under violent attack, members of the mob were chanting, hang mike pence, president trump support more fuel on the fire on twitter by painting the target on the back of vice president pence -- when you in coney -- >> the consequence to be the

prohibition that is clearly the constitution that says atif you engage in insurrection you can't hold office in the united states or in any state, if the consequence of this argument, the practical consequences, will we can't have the states in force that [laughter] so we're gonna have congress enforcement, which will be a rugby scrum. if you can't do it until the guy has been elected, when does congress do that? >> what they're going to write, i would bet a lot of money, is that congress has to pass an enabling statute that spells out specifically the procedures by which, all that get reference today, the sequence of events toin the reconstruction, some called enforcement acts, in which congress has to specify a procedure, because this is hard to interpret for courts and too crazy to leave to the state. congress has to ex anti past the statute. >> but then says it --

>> of course not. >> and they're saying that passes for the president. i bring you to coy given, the trump cowboy, who was disqualified in the state of new mexico for holding office, some local county office. there was no enabling legislation needed to do that. whether saying, is it's a state law. what they're saying is, you're going to have to pass it just for the president because ketanji brown jackson did get into this question of why didn't the drafters of 14th amendment to include the president? i guess they didn't have the ha lori to manage a nation to understand that a presidential candidate, somebody could be president would commit insurrection. so i didn't specify president? >> just a legal point, we're re talking right now about the -- which is very important. most of the argument turned on the who. one of the cases they talked about the most was the term limits case, which, isn't a perfect case. >> could you see the name of the cases term limits?

>> right. the supreme court has previously held that if you add something, even something that sounds g,reasonable like we don want people in congress forever, and we want a limit on that amount of time. they said that actually is added eligibility account a requirement, and they can't do that. so yes, one is super important. i would argue that the split on the court is about the what, and we might see that on the immunity case. but the who is, if it's a federal requirement that's in the federal constitution about the 14th amendment, then what states locally do, the who about their offices is one thing, and what they do about federalist different. the who here is i don't know, you e have your money down on live tv about how they're gonna write the ruling. so you t could be right. the other thing they could do ld is say, donald trump, whenever you think of him, not only has he been convicted of insurrection, but he hasn't been charged with insurrection or an insurrection like offense, which would be

insurrection or sedition. and therefore the who has to be some prosecutor or some other process at the federal level, and at the state level. i anknow that's frustrating. by the way, it's annoying, but i'm not saying that i agree of this. i had said through law school and i sit through the hearing today. the who is that. something that's more like the prosecutor or more like a federal thing instead of a states -- >> let me l ask you a question. what happens then if he gets charged with u.s. code 23 83 rebellion or insurrection if n he's convicted of that he would actually be incapable of holding in the office of the united states. >> i could answer it in the in stands. he or anyone is toast of that happens. >> exactly. >> problem. the house generative committee was quite clear in his recommendation little trump should be charged with inciting an insurrection. jack smith did not charge it. so now we have a case working its way to the federal courts where trump could be convicted of obstruction in any number of big felonies, except for inciting insurrection.

the big question is, if he's convicted in one sentencing comes down, is disqualification from office part of the sentence? does this count is something? >> we could dosay that had dona trump been charged with insurrection, we would've waved the had he been charged, today there's no chance that brett kavanaugh would say well anybody convicted of insurrection is disqualified. it's only because -- they're saying oh, we thought -- we've already done that. it's called legislating to the purpose. still to come, a lot more from today's supreme court hearing, including the very very poignant in a bad way moment where the lawyer for the plaintiffs took a question fromo his old boss, neil gorsuch. >> do you agree that the states powers here over its ballot for federal officer election have to come from some

constitutional authority? >> members of this court who disagreed about that. >> i'm asking you. asking you. from pep in their step to shine in their coats, when people switch their dog's food to the farmer's dog, the effects can seem like magic.

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sitting president of the united states to disrupt the peaceful transfer of power. by engaging an insurrection against the constitution, president trump is disqualified himself from public office. as we heard earlier, president trump's main argument is that this court should create a special exemption to section 3 that would apply to him and to him alone. he says section 3 disqualifies all oath breaking insurrectionists except a former president who never before held other state or federal office. there is no possible rationale for such an exemption. the court should reject the claim that the framers made an extraordinary mistake. >> did the framers make an extraordinary mistake? welcome back to our primetime recap of the u.s. supreme's deliberations today, their oral arguments today over whether or not former president donald

trump should be disqualified from standing for office. jason murray is a denver-based lawyer whose argument helped convince the colorado state court that trump should be disqualified from colorado's ballot. today mr. marie made his debut, representing six colorado voters who brought the challenge to trump's eligibility. in addition to more than a decade as a trial lawyer mr. murray has worked closely with two of the justices up there today. he worked for justice neil gorsuch when justice gorsuch sat on u.s. court of appeals. he also clerked for justice elena kagan at the u.s. supreme court. mr. murray appeared before those justices in a different capacity, making the case to them that the ruling he wanted in colorado should stand, a donald trump should not be allowed on the colorado ballot. joining us now, after a very long very stressful day, mr. jason murray. mr. murray, congratulations on your appearance of the court. >> thank you so much. and i appreciate you having me on. >> i know that this was not

your first time in that courtroom, and you are very familiar with supreme court procedure, and you seen a lot of lawyers step up to the podium today. how was it for you to do it for the first time? >> certainly a source of pride for me to get to argue in the supreme court for the first time and also to be able to appear before my former bosses. >> in terms of how things went today, i don't think it's going to come as a surprise to you for me to tell you that most observers think that the case is not going your way. most observers think that president trump will be allowed on the ballot, that colorado's decision to take him off the ballot will effectively be overturned by this court. i have to ask if you share that common wisdom, if you feel like you have a sense of where the justices are going after what he went through in court today. >> i won't sugarcoat it. it seemed like the justices were asking difficult questions, mostly procedural questions, about whether the states had the ability to enforce section three of the

14th amendment. i will say we got a lot of really difficult questions of the colorado supreme court as well. and when the colorado supreme court sat down to right their opinion, they realized we were right on the legal issues. we hope that hope that is the court gets deeper into the legal issues here they will realize that the law and the history is clearly on our side here. but certainly they did have hard questions today. i don't think the court would decide a hard case like this without asking hard questions. >> let me ask you to go back into one of the questions on which i think you got some of the hardest questions, at least i'm not a lawyer, islay of server, and i think some of the journalism has seen people reflect on some very hard questions on whether or not colorado is an individual state or indeed any other state should have a role that moving directly but would effectively remove a presidential candidate

from consideration by the voters of the whole country. that issue, that prospect was raised a few different ways by the justices today. i wonder if you would take it holistically and address that criticism of the take that colorado supreme court, and your clients, brought to the court today. >> it's an important question. i think it's based on a misunderstanding. we weren't here today to ask the supreme court to allow colorado to decide these issues for the nation. we were asking the u.s. supreme court to decide, as a matter of constitutional law, whether donald trump is eligible to be president again based on his own conduct of engaging in insurrection. that isn't a political question for a state to decide. that is a legal question for the court to decide. and although the case came up through a state court, many important cases of federal law, federal constitutional law, come up through state courts. but once they are at the u.s. supreme court, it is for this

court to make the final decision that will govern for the whole country about the constitutional eligibility of the candidate. that was the case we were trying to make today. >> i jason, ari melber here. congratulations to you one of the lawyers today. when the most difficult things to do is to be in that bench with nine justices. so congratulations to all of you. two questions. i don't know if you want to answer both of them. but given what he went through today, the whole thing is so fast and complex, is there any part where you would want to do it over or exchange remarks or build on an answer, because that can happen in any part of life. i'm curious if that happened at all, and would you share that with us. and second, we discussed today on this panel, and it was clear in the courtroom, that there was bipartisan skepticism about one of your key points, which is that the insurrection was this unique and rare event, and i wonder, is there a way that through your arguments that the

brief that sometimes matters more than the oral argument that you could better to phrase it differently to a different legal stand-alone insurrection is one you know what when you see it and we're not going to have a ton of frivolous made up insurrection claims if some bananas official or some bananas stayed says biden did insurrection when he gave an interview. and we were like yeah, that was a different than the live tv documented insurrection when that we lived through. you know it when we see it. >> absolutely. let me take the first point. i wouldn't characterize it as someone as a do-over as a fact that there are a lot of questions asked where i get ten words in before i get another question, and wouldn't have so much of a chance to respond. one thing i would like to emphasize now, because we didn't come up with so much an argument, is just how clear the evidence was and how lucid the colorado supreme court's

factual findings here were on the fact that president trump engaged in an insurrection against the constitution. it's not a secretive thing that relies on dubious witness testimony. this was in plain sight for everybody to see. we saw the tweets. we saw his words. we saw his campaign manager the day of, his former campaign manager, call this a sitting president asking for a civil war. we saw that even after the capitol came under violent attack, members of the mob were chanting hang mike pence, president trump or more fuel on the fire on twitter by putting a target on the back of vice president pence and egging the attacking mob on. we saw his tweets at the end, where he praised the attackers and justify their actions, saying these are the things that happen when an election is stolen. his case isn't close to a virtual confession of intent to incite insurrection you can possibly get. and so i thought that some of the discussion about, well maybe one state will have one

evidentiary record, another state will have another, didn't fully engage with that central point. >> i was gonna ask you to remind me what your second question was because now i have forgotten. it >> insurrection, do you know it when you see it? >> i think it's more than that. the history is really clear on what an insurrection. isn't insurrection is more than a protest gone. wrong and insurrection is more than a riot. in insurrection is a coordinated attack for the purpose of resisting execution of law by force. and section 3 requires an insurrection against the constitution. and that hasn't happened since the civil war. because here an insurrection against the constitution requires that you are attacking a function mandated by the constitution, not just an ordinary law. into here we have an attack on congress's constitutional duty to certify the presidential election results. so hypotheticals about the idea

that estate might misuse section three to go after their political opponents, i think just misses the point. you can always have frivolous applications of law, frivolous cases that are factually and legally baseless, and we trust that our justice system will put an end to them by saying this is baseless. i don't see why section 3 should be any different. >> i jason, it's joy reid. as a product of denver public schools, i will congratulate you and steve collateral for making history. justice clarence thomas, he didn't ask a lot of questions, obviously yes the first question is he's the senior justice. but there was one point where he was pretty animated with you. there is some irony, and i'll just say this myself, that his wife, her relationship with the insurrection i found ironic when listening to him speak. it was a point at which he talked about the plethora of confederates still around after the civil war. there are any number of people who can continue to run for

state office so it would seem, he said, that that would suggest that there would at least be a few examples of national candidates being disqualified if your reading is correct. there was a lot of engagement with you on this question. if this is such an obvious point, in section three is self executing, why aren't there other cases that we can cite where insurrectionists were disqualified in the way that you are arguing donald trump should be disqualified. i would love for you to say more on that. if we could have a longer exchange, what more would you say? >> one of the extraordinary things about this case is that we have about 50 professors of history who are the leading scholars in civil war reconstruction file briefs on our side in this case. they explained that history. they said that immediately after, before the amendment was ratified, and even before, congress was flooded by requests for amnesty from people who knew they would otherwise lose their jobs and be kicked out of office. the union army was evicting hundreds of people on a weekly

basis for officers in the south that they were ineligible to hold. and we had a number of state court cases where state courts were determining eligibility under section three. i took it what justice thomas was asking with something much more narrower than that broad question, which is, where states ever trying to restrict federal officials from taking federal office? ? and the answer is no. but that's because of how balance work differently. biden states have power to run elections in control the ballots. that's incredibly clear from article two of the constitution. and the difference is that back then states didn't write the ballots. they didn't run the ballots. essentially everyone was a write-in candidate. so the only way that federal officer who was elected like a member of congress would have their eligibility determined is after the election when they came to congress and said i one and then congress decide whether to seat them. but history doesn't answer the question here because nail states are using that power to

do ballot access determinations and so then you have to ask, well, if states can exclude a person who's not a natural born citizen, or person who's under age for the presidential ballot, which they've been doing for many decades, why can't they exclude an oath breaking insurrectionist? >> jason murray, the lawyer representing colorado voters, defending that decision today at the united states supreme court, a big stage for your first time ever before the supreme court. i know that there's pride that goes with it, but i hope you get some rest thereafter and that the adrenaline come down is not too painful. >> thank you so much. i appreciate that. >> all right. good luck. much more to come in our coverage of the supreme court hearing today over whether donald trump is disqualified from the ballot. first, a moment for the named plaintiff in this case, whose lawyer we just met, she is 91- year-old colorado republican

norma anderson. >> this is very personal to me. i've lived a hell of a long time and i've gone through a lot of presidents. and this is the first one that is trying to destroy the constitution. if they qualify him, they would have to work very hard to beat him. beat him.

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have the floor, can i ask you to address your first argument, which is the office, officer point. oh, sorry. oh, is that okay if we do this and then we go to -- ? will there be an opportunity to do officer stuff. >> absolutely. [laughter] >> officer stuff. we will get to the officer stuff. let's do it. welcome back to our primetime recap of the supreme court plan recognitions today on whether donald trump's effort to overthrow the government the last time he lost an election is sufficient to keep him from standing for election again, or from serving as president, if indeed he's elected. every one of us who has ever reported on the with supreme court knows better than to extrapolate from oral arguments to try to define how the justices originally going to rule. we know we're not supposed to do that. but even with that caveat, i think everybody's eyebrows shot up to their hairline today when

center-left justice elena kagan said this. >> if they could put most boldly, i think that the question that you have to confront is why a single state should decide who gets to be president of the united states. in other words, this question of whether a former president is disqualified for insurrection to be president again is just say it, it sounds awfully national to me. so whatever means there are to enforce, it would suggest that they have to be federal, national means. that seems quite extraordinary, doesn't it? >> no, your honor. because ultimately it's this court that's going to decide that question of federal constitutional eligibility and settle the issue for the nation. it's not unusual that questions of national importance come up. >> we would say something along the lines of the state has the power to do it. but i guess i was asking you to go a i'm daniel lurie and i've spent my career fighting poverty,