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,

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some smaller party candidates get, on not others. some are kept off eligibility concerns the some states take more seriously than others. it happens. the supreme court can give guidance to make it more uniform, but the states can handle this. the colorado solicitor general, speaking on the same point just moments later said there is a huge amount of disparity and candidates end up on the palate in different states and every election. just this election, she said, it a candidate to colorado excluded from the primary ballot, who was on the ballot in other states, even though he's not a natural born citizen. that is just a feature of our process. it is not above it. so there's an answer to this concern we just heard jason marie who had an answer to it a few moments ago. when the justices ex express the concern of the individual states shouldn't be allowed to do something that has profound national consequences it definitely resonates. did the lawyers in the room rebut that concern, answer it

in a way that's going to work on any or all of the justices? just the fact the justice kagan asked about it at all mean that this ruling is foretold? joining us is someone who knows these things, senior editor and legal correspondent for slate, also the host of the amicus podcast. great to see you. thank you so much for being with us. >> good to see you. >> is there anything that we have been talking about here tonight that has been like petting account the wrong way for you? feels like we have screwed up, got the wrong way around, or misunderstood? >> not at all. i might quibble with arteries destination wedding metaphor because to me it felt so acutely like a train in speed, where it's just hurtling from one crisis to another. we have a court that's in the midst of a legitimacy crisis. you've got a dobbs leak. even a bad investigation of the dobbs leak. you've got ethics scandals left and, right the first justice asking questions, had his wife

testing mark meadows and trying to get state election officials to change votes. all of that is happening, and you sort of feel like the justices are like hurtling their bodies against the sides of the train, just being like, get me off this train. i don't care what the rationale is. i'll go with the one state shouldn't decide rationale, argo with the officer rationale, i'll go with there's no due process for the president rationale. i don't care, i need to be off. and that anxiety was palpable. >> and ari is saying that's exactly what i mean. >> so whatever way they weren't gonna go to the wedding. >> exactly. >> the train isn't going to end well. so dahlia, my question is, and i have a good question for, you i think we could all see the justices trying desperately to get away from having to do something substantive here that would address the crisis at hand. what is the damage? what's the risk?

what's the potential negative consequence of them finding a way to dodge it? >> i think at the most sort of high-minded constitutional law of all it's that this needed to be answered. that is, i think, what colorado was saying, that it's your job to resolve a constitutional question largely a first impression and it is your job to decide for this entire country whether or not the 14th amendment section three is self executing, whether the officer dichotomy holds, whether we can allow insurrectionists to run for office but not hold office. there's a bucket of questions that are exigent questions, and the court, i think, made pretty plain that they would rather, or at least i counted, i think, five or six votes hanging their hats on this deal be pragmatic

argument that we don't want to decide because it will allow shenanigans in other states. so it just seems to me that the downside is, and this was, everybody knew this was a huge vehicle, a big swing case. they have an opportunity to, when they get the immunity case. maybe that's the trade-off here. but this was a huge swing case. we have an unresolved constitutional question. i'm not completely certain that writing, oh, we need enabling legislation lets them out from under that question. >> on that point about the immunity case being right around the corner, we expect that by monday, these judges will be asked to weigh in on whether or not that d.c. circuit court ruling should stand, the ruling this as unanimously by that panel of appellate judges that president trump doesn't have absolute immunity, that he can be prosecuted in federal court for what he tried after the

election. in discussing immunity today, i guess he wasn't trying to bring up immunity. president trump's lawyer awkwardly brought it up with brett kavanaugh. while brett kavanaugh was trying to focus on this question of why president trump wasn't prosecuted for insurrection, and we've been talking about that a little bit tonight, this idea that because trump hasn't been charged specifically with insurrection, that suddenly seemed to create this incredible clarity among all the justices that had that thing happened, then this would be something that there would be an easy answer to when we know what to do when this would be settled in a definitive way. i just wanted to ask here, your reaction to that. it doesn't seem clear to me why it's necessary for trump to be charged with or convicted of insurrection for the constitution's ban on insurrection serving in office to be effectuated. what did you think of how that part of it was handled? >> i was a little frustrated at

how deeply disrespectful i felt that the court was about the process that happened in the colorado trial court. there was a trial on the merits. there were, as you just heard, meaningful findings from that court. the notion that trial courts can't do this thing determine whether there is an insurrection. or even worse, rachel, the notion, and we heard this from the chief justice, heaven for offend we would have to somehow determine whether there was an insurrection. >> us? >> imagine that fell on? us and there was a deep disrespect for what actually happened and i think that deals with one of the things that you all said earlier in the year round up, which i think is so important. we have a court that, for, i guess the first time in 20 years, found humility today.

institutional humility. we can't do it. this was the court that decides air pollution and water pollution and vaccine policies. it is going to determine what emergency room doctors can do when there is an abortion base, and they can do all that stuff and they can't either determine what an insurrection is already for toward trial courts definition. it's very weird in february of 2024 to discover humility. >> exactly. results oriented, as we have been describing. dahlia lithwick, legal editor for slate, host of the amicus broadcast, and my favorite person to talk about the supreme court. thank you for being with us tonight. definitely, i want to bring you in on this. in discussing what happened in the courtroom versus what's going to happen next, i feel like there's, unlike the

immunity case, there isn't really a piece issue here. there isn't a lot of scrambling as to what's going to happen next and what effect this will have another cases. this is either going to end it all or it's not. and it feels like it's not. but does that mean that what happened in the courtroom today is essentially beside the point essentially based on this case? >> the concern i think tonight is, what do the american people know? you said it at the top of this broadcast. most people will probably not listening today to the audio for two hours. as sad as that makes us, not every american is watching us right now, although i totally think they should be. and just think about it. during those two hours, there was much debate over what exactly was in the amendment. what government jobs in previous cases but there is no debate, no discussion, and no decision over whether donald j trump incited an insurrection. and the risk now, if the court rules and favor of donald

trump, is a whole lot of americans could say look, they didn't do anything, and that's not the case. so in terms of what happens next, we say every night here, making sure the american people actually know the truth. >> it's very approved, it's important stephanie, that would if we look at the details of, this it's important to understand the nuances between the different justices and whether it's gonna be an 8 to 1 or 6 to 3, and the takeaway of this is they tried to say trump did an insurrection -- >> if he didn't do it -- >> he won that case. if that's the takeaway, people are missing the point, but the court's decision may do damage in terms of how we perceive whether or not the 14th amendment exists, whether insurrection is okay. >> there are many people who are gonna take that take away and say he didn't do it. the high court said it. >> i thought you made good point about this sudden humility that they found. i'm wondering if they could find it on the mifepristone case. and we're gonna find it in

cases where, i mean, they seem to believe that states have a lot of rights when it comes to women's physical body. but they are like, a state, with the state get to do with elections? what kind of everything. and as i was listening to dahlia talk i was thinking about another amendment that was a reconstruction amendment, the 15th amendment. it has what is enabling registration. it's the voting rights act. they have no problem chipping away the voting rights act, which is the enabling legislation, like 100 years later, for trying to enable the 15th amendment, the one that says that no one shall be denied their right to vote based on race or previous condition of servitude. but they don't have any problem saying that some states can allow you to have voter i.d., some states don't. some states will only vote if you bring your gun license. states are making decisions that give you different outcomes for who comes ax has

access to the ballot every day, and only some justice departments, like or bombers, i really litigating on that. and the reason i keep coming back to that is what people are also forgetting is the insurrection was an attempt to deprive 80 million people of their right to vote. it was an attempt to literally disenfranchise 80 million people, disproportionately black folks in detroit, people in georgia, people in arizona, a lot of latinos in arizona. and you're talking about trying to disenfranchise people based on believing that they aren't true americans and that they are the outcomes of their selection shouldn't count. >> i feel like this week, it's thursday right, between today when it so evident that the court is making political decisions. they're not just extreme textualists. they're not regionalists. they're very much looking at the practical implications of the law. and then monday, when they're gonna get this appeal from trump to hear the immunity case, and this broad

speculation that if they ruler trump's favor on the 14th amendment they may not rule in his favor on immunity, making clear that this court takes into account politics when it makes its decisions, and that it is the court's credibility, that is at and nader. both today and what happens, and whatever happens next week, the perception that it's a slap on this wrist, a carrot on his hand, and a stick on the other, makes it so evident to the american public this court is not what it proposes to be. the question, i think, is gonna be somewhere along the line, in some congress yet to be elected, accountability? how did that happen? >> the prospect of unanimous decisions from the court in either direction, which is remarkable pseudo- bipartisanship. result is riven negotiations. much more to come in a recap of today's historic supreme court hearings. stay with us.

>> we understand what we are asking the court to recognize is something extraordinary, which is that for the first time in our nation's history, a major candidate for president of united states is ineligible for that office under the constitution. so we fully expected we were going to get difficult questions. we are confident when the court looks as a law and digs into the issues, it will realize that we are right and apply the law as it is written. law as it

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>> president on trump engaged in insurrection by inciting a violent mob to attack power capitol and disenfranchise over 80 million people who voted against him. in doing so, president trump disqualified himself from holding office. that's not something we are doing to him. that is not something any court is doing to him. that is something he did to himself, under our constitution. >> disenfranchising 80 million people who voted for his opponent, and was in fact the winner of that election. tonight's special edition of the last word with lawrence o'donnell starts at 10:30 pm eastern tonight. so you have that to look forward to. if you leave a note for your boss in the morning as to why you are sleepier than usual, just let me know. i'll sign them for. you welcome back. meanwhile to our primetime recontact recap of the supreme court's today. this historic case about whether former president donald trump did himself out of a job, did him self out of holding office again when he

participated in an insurrection against the united states. an insurrection against united states is not just a mean thing to say. it's also a crime for which you can be charged in federal court. add to these arguments justice brett kavanaugh raised the issue of that possible federal prosecution. it made sense in context, but it was clearly a sensitive subject for president trump's lawyer. >> just to be clear, under 23 83 you agree that someone could be prosecuted for insurrection by federal prosecutors and if convicted could be or shall be disqualified from office? >> yes, but the only cavett caveat that i would add is the client is arguing he has presidential immunity, so we're not gonna concede that he should be prosecuted. >> understood. asking the question of the theory of 2383. >> one could be prosecuted for insurrection. one could be prosecuted. not him.

of course he couldn't be prosecuted for anything. not saying anything one way or the other about whether donald trump might have committed the crime of insurrection, whether he might be immune from that prosecution for that crime, even if he did it. that of course is a sensitive issue for a sitting supreme court justice to discuss with anyone, given that that is an issue that the supreme court will be taking up by monday as in several days from now. joining us once again, our friend andrew weissmann, former general counsel for the fbi. when the senior prosecutors on robert mueller special investigation. thank you for sticking with us. what do you think about the fact that donald trump was never charged with insurrection or any insurrection related crimes? that is something that the january six investigation in congress suggested he should be charged with after their very detailed investigation. >> that would've been one of the crime is referred by congress to the department of justice. one crime that has, as a

penalty, upon conviction, that the person shall be, not be able to run for office. they are disqualified. so there is a lot of discussion today, as you have been noting, that that is essentially a form of the congressional federally congressional enabling statute for this constitutional provision. i sink there are probably two reasons that this department of justice did not charge it. remember the special counsel's part of the department of justice. i think one is that that crime had not been charged for many years and so this idea that they're reaching back to that crime to single out donald trump, which would certainly be an attack. there's an answer to that, which is we've never been in that situation before. but i think the other is, if you think that there's a claim of politics now, if you brought

that charge, the idea is that has that penalty, you are avoiding all that. and i think that's really worth taking a step back to note that if you think about what we are seeing with comparing this justice department, both in the discussion we're having now about the fact they didn't charge insurrection, they did not seek to make it disqualifying for donald trump, and relate that also to what you saw in the special counsel report today, this is the justice department that appointed a special counsel for the sitting president, appointed a special counsel with respect to a sitting presidents son. you did not have merrick garland, for instance, issue a purported summary of the report saying, obviously, that something on my mind today. for my work with the mueller investigation. if you just compare the propriety and sense of what the

department of justice should be doing or not, and even if you disagree with, it it's clear they are trying to adhere to the rule of law and appropriate functions of the department of justice. and it just is in striking contrast to the trump administration, where they appointed the department of justice appointed a special counsel and basically every single day that that council existed there was the constant threat that donald trump would get rid of the special counsel. so it's just remarkable how different the two justice departments are behaving. that was my take on what i was thinking about, the insurrection charge that was raised in the oral arguments today. >> let me also ask you about the other thing that came up i think a bit awkwardly in that exchange between the justice and the lawyer, which was this question of immunity. obviously the supreme court, within just the next days, is

going to consider whether or not to leave standing that this ruling this or donald trump doesn't have immunity from prosecution. i think, i mean, i don't know, i think the common wisdom is that they won't take it up, but also that the circuit courts ruling against trump is not in much danger. again, it's a peanut gallery. who knows? we'll see how it goes once the court makes its own decision. do you think there's any interplay for the justices, between what they handled today, this issue of trump's qualifications to be on the ballot, and this next thing that is coming down the pike to them, this issue of immunity? do you think that one of them being so near on the horizon has an effect at all in terms of how they handle these issues? >> these are people. they are humans. and yes, people are saying well maybe they will take it because they want to show that they're even, they'll give with one hand and take with another. they clearly wouldn't take that

case just to reverse the d.c. circuit. that's just not going to happen. they would want to put there in premature on that issue. in living today, they would say we don't want any more cases in my own view that's the way to go because it would be odd to take a case where it might be vindicating the idea that no president is above the law, that the unremarkable proposition that a president cannot kill people with impunity. it's just almost incredible that we're having that discussion. but if they were to take the case to vindicate that, in many ways de facto they would be undermining it because it would delay the case that is actually trying to hold them accountable for crimes. so in some ways it's the worst possible vehicle for them to be

putting their stamp on. >> just as humans, even if the only thing about the three justices appointed by donald trump knowing they're sitting there for a couple of hours like they were today it would have to happen again pretty soon, and you have to spend the whole time talking about donald trump murdering people, murdering individuals, they'd be like named people who would be murdered in hypotheticals. they would have to sit and engage with it in order to come to, even if it was a predetermine conclusion. i can't imagine if you're amy coney barrett that that's a fun way to spend a tuesday after today. >> absolutely. if you just look at today, it was a bloodless discussion today, where there was limited discussion about the actual insurrection. it was so interesting hearing from counsel for colorado, with us tonight, where he actually gave so much more color to end discussion about what actually

happened on january 6th. that didn't happen in the supreme court. and i can see them very much not wanting it to happen in those hallowed halls. >> yes, exactly. and always, one former general counsel to the fbi and our stalwart friend on nights like this. andrew, thank you very much. i do think that, and this is to your point alex, it's impossible to think that these justices are going to handle these issues in isolation. this has to affect their willingness to take on the immunity case. i don't think anybody expects that they're going to overturn that appeals court ruling. if they're gonna say that donald trump relieves immune from prosecution even if he murders his political opponents. so i put themselves through this again? >> and the reality that just sort of take here up to put their stamp on it is going to hand trump a by further delaying into

-- but i am not, i don't think the justice department has covered itself in glory an any of this, to be honest.

i think it was totally appropriate to appoint a special counsel in the case of the current sitting president's handling of documents. that is the justice department. it's the guy he appointed. it's running doj. in the case of the former president, it's not clear why he needed the special counsel in three years, and to avoid the most obvious charge, which was 23 83, insurrection. and i think the outcome of the colorado case prove that it was a winnable case. in five days improve the donald trump did violate the law when it comes to insurrection, that he was an insurrectionist, and by not just being direct, and not doing the job that he's getting the big bucks for, merrick garland, he has caused us to have to wait three years to have the supreme court avoid doing the obvious as well. and the truth is, he could've just been charged with insurrection by the current justice department, and it

would've been adjudicated and over by now, and this will not be a question. and you can only win one. >> i didn't mention the name merrick garland, i think jack smith took this up as quickly as he could. >> yes he did. >> two and a half years, that's gonna be the true question. >> all right, a recap of today's arguments and supreme court continues in just a moment. stay with us. >> if president trump were appointed to an office today, if he were appointed as a state judge, he could not hold that office, which shows that the disability exists now. the fact that the congress has a power to remove the disability doesn't negate the present qualification, nor does it implicitly bestow on president trump a constitutional right to run for offices that he cannot hold. ca.

>> we've been told that if what colorado did here is sustain other states and retaliate, then they're going to potentially exclude another candidate from the ballot. what about that situation? >> your honor, i think we have to have faith in our system that people will follow their election processes appropriately, that they will take realistic views of what insurrection is under the 14th amendment. courts will review those decisions.

this court may review some of them. but i don't think that this court should take those threats to seriously, in its resolution of this case. >> you don't think there's a serious threat? >> i think we have -- >> we should proceed on the assumption that it's not a serious threat. >> i think we have institutions in a place to handle those types of allegations. >> one of several moments into these landmark supreme court argument, justices raised the prospect of one state pulls a candidate's name of the ballot, other states will retaliate and pull other candidates means off the ballot for no good reason. and wouldn't that be terrible? this is a case that former president trump makes public all the time. the rejoinder to it is the obvious one. we heard there from colorado solicitor general, the rejoinder true it is, well, no, we're still operating with the rule of law here. and if there is no good reason for throwing somebody off the ballot, the courts won't allow it. just like they won't allow

retaliatory prosecutions for no good reason, or any of the other things that trump is threatening. joining us now, nbc news presidential historian michael beschloss. michael, thanks for being with us tonight. >> same here. thank you, rachel. >> i wanted to ask you both about the substance of today's hearing, and i think most heroes believe the trump will not be strike off the ballot, but also this larger point that i think was illustrated by that exchange we just played, which is, so much of what's happening from a country reckoning with donald trump is the country reckoning with his bluster, his threats, and the fear of what he might do if he is held to account. and that's right up on the supreme court's doorstep. >> that's for sure. and we just heard that the words in that clip. we've got to have faith in our institutions. well, that's true in general, but i keep on remembering, both when i was listening today and also listening to all of you talk tonight, what just as

robert jackson said in 1949. he said the constitution is nonsense is not a suicide pact. and what he meant by that is the constitution deals with all sorts of issues but if you can't protect your country against threats like rebellion and insurrection, such as we saw in the civil war, and we saw on the 6th of january the none of the rest of this matters. so looking at it historically, the civil war, it's a matter of grim record that confederacy tried to take down a republic, tried to take down our democracy, break it up into two or more countries, one of which would be a big slave holding republic, the union army was able to prevent that. narrowly. but what happened, as you know from your reading of history, is that after the civil war ended, jefferson davis was actually saying, and this was a direct quote, the leader of the

confederacy, supposedly defeated, what he said was, i confederacy was not defeated in this war. we won a victory and we were cheated of it. so he tried to deal with that by getting ex confederates elected to federal office, elected to state office, and so that's one of the reasons we've got this 14th amendment, which wise the congress and the states putting themselves on the line in a constitutional amendment, saying we've got to protect our country and ensure that an insurrection like the 1860s never happens again. all i am saying is, here we are in 2024, donald trump has committed an effort at insurrection and almost succeeded in 2021. he is now saying i will do it again if you elect me president. i may have a dictatorship. i may suspend the constitution. how much more a warning to we need? >> in terms of the supreme court taking what appears to be

its approach to this today, again, we're reading the tea leaves in terms of the way the justices behaved in the questions they asked, but if they choose to absent themselves arms process and say hey we hope the 14th amendment takes care of itself, we hope insurrectionism as self- defense. in history other parallels? are there things we should be looking to in terms of the supreme court walking away from confrontations with clear and present danger like this? >> absolutely. the supreme court knew in the dred scott decision in 1857 what they were unleashing by saying that slavery would go on forever. this court is beginning to remind me a little bit about the court that brought us the dred scott decision. and all i am saying is, for someone to say let's just have faith in our institutions, our institutions did not work in the 1860s. they almost didn't work in 2021. if the supreme court does not act, if colorado does not

prevail, then we are basically saying, leave it to the voters. and all i can say is, to people watching us tonight, voters, donald trump has said he wants to take down this republic. is that okay with you? it almost happened before, twice. are we going to let it happen a third time this november? >> nbc news presidential historian michael beschloss, thank you. >> i want to add to what michael said. one of the strange things today was that arguments sort of for affirming colorado tend to be historical, textual, and the others are practical. if we pull on this thread this thing will happen. what was totally missing were practical and prudential considerations on the other side. let's forget about the text of the 14th amendment. let's just think about if you let this guy on the ballot. let's say that we have an election in which donald trump's pulling ahead, going into election day, but the polls are wrong and he loses.

let's say that we have an election in which joe biden wins 270 electoral votes to donald trump's 268. totally impossible. that means every state is a deciding state. let's say one of those states was decided by 5000 votes. or, is in the case of florida in 2000 -- what about 2000 votes? what do you think is going to happen under those conditions? what do you think will happen to the country if this man is in that position under those conditions? >> a bigger mob with better weapons. in just a few moments, my colleague lawrence o'donnell will take the reins with a special edition of the last world word. don't go away. go away.

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>> insurrectionist should not be able to hold federal office. there is a tool to ensure that that does not happen, namely federal prosecution of insurrectionists. and if convicted, congress made clear you are automatically barred from holding a federal office. just to be clear, under 23 83 you agree somebody could be prosecuted for insurrection by federal prosecutors and if

convicted, could be, or shall be disqualified then from office? >> yes. the only caveat i would add is that our client is arguing that he has presidential immunity. so, we would not concede that he could be prosecuted for what he did on january 6th. >> joining us now, andrew weizmann, former general counsel and chief of the criminal division from new york. he is the coauthor of the new book, the trump indictments, the historic charge in documents of a commentary, available on february 27th. also, neal katyal, former solicitor general, he is host of the podcast courtside with neal cottrell. there are both msnbc legal analyst. that gives me your home court. the supreme court of the united states. to the point that we just heard from justice kavanaugh that there is a federal statute, an insurrectionist could be prosecuted under that, and in the guilty verdict there that the statute actually specifies, can't hold office, doesn't take care of it. >> unfortunately, i heard zero

answer from the defenders at the colorado supreme court decision today, lawrence. i really sure wish that professor larry tribe argued this case. because the colorado supreme court was left defenseless in today's proceeding. you know, oral arguments are not always decisive but it can crystallized issues, i've watched more than 500 oral arguments, and the goal is always three things. one answer the justices questions, to, to advance your own major affirmative points. number three, if you are going to lose, engineer a soft landing so you don't lose big. none of those goals were meant today. i am left wondering how these people one at all in colorado supreme court. because the colorado supreme court decision was just not defended today. we heard all about the risks and forming the colorado supreme court decision, we heard

precious about the risk of rejecting it. that is what this 14th amendment is all about. forged after the civil war to try to make sure that no insurrectionist would ever hold high office, and the risk that our country came together and understood that would have been. we just didn't hear anything like that. you didn't hear about the risk of donald trump treating this 14th amendment precious language like the tax code, looking for a loophole here, and a loophole there. that's what he's trying to do. we didn't hear anything about why this is actually consistent with our democratic values. and excluding insurrectionists from the ballot just as we exclude other people from the ballot who do not meet the qualifications for office. unfortunately the supreme court has a very distorted picture. or i am sure that they have court briefs. but unfortunately, those were not even highlighted today either. >> i heard you argue a case in

the court, so i know those points and the way that you do it, i have to say i marvel at it because you do it with such a speed. could you give us an example of rhetorically where you think that the colorado argument should have gone today, where it didn't? by which i mean beyond just the little details about the office, that they are trying to drag you into, is there a way that you would've pulled out to rhetorically make them see this full forest that we are looking at here? >> i don't know that i would've been able to do it but someone like professor tribe certainly would. because as you showed from the interchange before, the gravity of the court's concern was if you like colorado do this, some other state is going to do this and it will be this thing, and it will allow maybe one state to rule for all 50 states and the like, and it will be chaos.

and you've got an answer that. you've gotta know going into the argument that that is where the court's concern is. there are many important answers, like the fact that the brief you highlighted a couple of days ago points out that it is a 50 state solution and you can actually have the absence of democracy to allow colorado to have one set of qualifications and california to pick another. but to the extent that you had stays that aired on this and disqualified someone wrongly, the 14th amendment drafters actually latest into the amendment a solution for that. congress can vote to remove the disability. they can vote to say yes, you ordered an insurrection in the past but we are letting you vote anyway, and bizarrely, that is a way that trump's lawyers started the argument today. it is unfathomable to me that that is how you started. it but that is a good example of where a skilled advocate could've just said yes, remember how we started the argument? that is the answer to the

question. when you have a state that is going off the deep end, congress can be the solution. that is the way that the founders thought about. it the whole argument should've been pitched in terms of original intent of the 14th amendment. that is the way that the friend of the court briefs. and i know that you had former president faust on soon, and that is what those arguments were. we just inherited. a. unfortunately, they set a very easy case for the supreme court. and it shouldn't be an easy case for the supreme court. donald trump has acted like an insurrectionist, he's been adjudicated as an insurrectionist, the colorado supreme court labeled him, that yet, unfortunately i think that that is not the way that it was teed up. >> andrew, it is a highly theoretical case in the following way. donald trump is never one colorado. it doesn't matter if his name is on the ballot. you can take a steam off of the

ballot in california, new york right now, massachusetts, he will have no effect on the election because he is not going to win the electoral college votes for most states. this would only matter if we moved into a state that was winnable by donald trump, when certainly the state was that he already won. >> absolutely. but that is something that they were thinking about. that is a typical concern in a case. and what is always in the background, and you'll notice this, if i grant this, what doesn't mean? and then, the second thing is you worry about it, and the court worries about, it what is the limiting principle? it is like, where does this leave and what is the limiting principle? i do agree with me all of that there were many arguments that you were wondering why is this being put forth, having said that, they were extremely good questions. and i do you think that one challenge for colorado was that

the so-called three level judges, you have justice sotomayor, you had ketanji brown jackson, you had justice kagan, all asking difficult questions. particularly, justice ketanji brown jackson was very fixed on the history. i noticed it is something that you've been covering, and she had a very different take on one historical record of what she took away from that. she might have been wrong, but her view was very much that it would be ironic, and to be looking at this as someone who gives more rights when there was such a concern about the confederate insurrectionists burrowing into the states, that goes to the clip you played, it's and this essentially kavanaugh saying that there is a federal way out? which is that somebody could be charged as a federal insurrectionist after a congressional statute, doesn't

that solve the question? unclear to me if they actually had done this extra charge that justice kavanaugh would be saying that. and it still doesn't, -- it doesn't totally answer the question because there is still an issue on whether that is constitutional. whether that really does come forward and is anti-democratic. so there is still that issue. many viewers might be asking why wasn't there that prosecution. i think for two reasons. one, the statute has not been charged in over 100 years. it would be selective prosecution, some answers to that, including that we haven't had a former presidential engagement so there's no reason to have charged it. but the other is the concern about being viewed as political. it is worth remembering that this is a credit to our justice department. even if you disagree what they were thinking is that we could've charged this. there is no question. the facts supported that

charge. and they precisely, i think weren't doing it. if i had to guess, because they didn't want to see that sort of claim that they were doing it just to keep them out of office. >> i'll katyal, thank you for continuing our discussion. thank you for joining us on this important night. i can feel your frustration. thank you, neil. coming up, before we turn to our distinguished historians tonight we will review tonight's breaking news. the special counsel report released tonight saying president biden did not willfully retain classified documents when he left the vice presidency. andrew weissmann will analyze the report through the lens of his own prior service on the special prosecutor's task force. that is next. (thinking: eddie, no frasier, frank... frank?) fred! how are you?! fred... fuel up to 7 brain health indicators, including your memory. join the neuriva brain health challenge.