>> in this hour you are going to hear from all of the highest level experts you should expect to hear from on this program about an historic supreme court case, harvard law professor and

distinguished supreme court practitioner, laurence tribe. harvard historian, yell historian, and of course on this important night we are fortunate to hear from to law professors who are also practitioners, andrew weissmann, and neal katyal. neil katyal is of course a distinguished supreme court practitioner, having argued 50 cases before the court, and andrew weissmann is a former federal prosecutor and justice department official. my mission therefore in this hour is to get out of the way so that you can hear from them and not me. but i, want to take a minute to begin with two things that may reside more in the category of pet peeves than scholarly discussion that you are about to hear from our guests. one is that clarence thomas should've recused himself from this case because everyone on that bench today knew, clarence thomas's wife was there. she was there, she was present when donald trump incited

engaged in insurrection. >> the essence of our case is president trump's own statement that he made in public view for all to see. >> you want us all to just watch the video of the ellipse and then make a decision without any deference to our guidance from lower court fact fighting? >> he's never at any point in this proceeding suggested that there was something else that needed to be in the factual record, any other witnesses that he wanted to call to present this case. and again, the essence of our cases's own statements. and in particular, his own videotaped statements on the ellipse. >> mr. mary, just a circle back. sorry to interrupt. >> all of those judges now that virginia thomas was there in donald trump's entourage when donald trump was telling his mob to go to the capitol and fight like hell. is that why justice gorsuch interrupted? to cut off those references to the speech at the ellipse? and to, you know that guy at

work who has accustomed to be the smartest guy in the room. and sometimes has a right to think that? today, that guy was the trumpiest character on that bench. >> counsel, what do you do with the, what i would seem to be the plane consequences of your position? if colorado's position is upheld, surely there will be disqualification proceedings and the other side and some of those will be succeeding? some of them will have different standards of proof, some of them will have different rules about evidence, maybe the senate report won't be accepted and others because it is hearsay, maybe it is beyond a reasonable doubt, whatever. in very quick order i would expect, although my predictions never been correct, i would expect that a goodly number of states will say, whoever the democratic candidate is, you are off the ballots and others?

for the republican candidate, you are off the ballot, and it will come down to just a handful of states that are going to decide the presidential election. that is a pretty daunting consequence. insurrection is a broad term, we would be deciding whether it was an insurrection when one president did something, as opposed to when something, and somebody else did something. what do we do? >> jason mary had this response. >> there's a reason that section three has been dormant for 150 years, and that's because we haven't seen anything like january 6th since reconstruction. insurrection against the constitution is something extraordinary. >> the supreme court is supposed to be a place that takes precedence seriously. a president of 150 years of this never happening is not enough for chief justice john roberts. the chief justice sat there and perfectly echoed the trump idea that if he, donald trump, isn't any way punished for his crimes, then every president

after him will be punished for the exact same crime even without committing that crime. the highest ranking judge in america, accepted that perverse vision of american jurisprudence. no, there is not a democrat anywhere in the united states of america who can be kept off a presidential ballot in any state using section three of the 14th amendment as the colorado supreme court has used it in donald trump's case. there was laughter that you could hear when chief justice roberts said, my predictions have never been correct. the laughter at what the chief justice said was not loud enough or long enough. okay, i am done. now, let's turn to the rest of what was said in today's supreme court hearing, beginning with justice kavanaugh and the way that he raised the issue of democracy.

>> in trying to figure out what section three means, and to the extent of its elusive language, or vague language. what about the idea that we should think about democracy, think about the right of the people to elect candidates of their choice, of letting the people decide? because your position has the effect of disenfranchising voters to a significant degree and should that be something, does that come in when we think about should we read section three this way or that way? what about the background principle if you degree on democracy? >> i would like to make a few things. for example, if we pursue on constitutional safeguards, there for the purpose of safeguarding our democracy, not just for the next election cycle but for sections to come. and second -- and third, this case illustrates a danger of refusing to apply section 3 is

written, because the reason that we are here is because president trump tried to disenfranchise 80 million americans who voted against him. and the constitution doesn't require that he be given another chance. >> leading up for discussion tonight is professor laurence tribe, who is taught constitutional law at harvard law school. and professor tribe, i've been waiting all day just to turn your microphone on. the floor is yours professor. >> thank you lawrence, i was very proud of the answer that my former student, jason marie gave. he is exactly right. there is nothing anti democratic about section three of the 14th amendment, in many ways it is the most democratic provision of the constitution, it is the one that was put in there specifically to ensure that when someone tries to disenfranchise millions of

americans by preventing the results of a fair presidential election from being implemented, by preventing the peaceful transition of power to the winner of the election, that when someone does that, that shows that the person is so dangerous that he and she can never again be allowed to hold and probably even to seek any office, much less the presidency. a whole point was that donald trump demonstrably tried to different franchise 80 million americans by refusing to take no for an answer when they turned him out of office. it wasn't just the violent mob that he incentivized and he

prodded encouraged, that was just the climax. there were weeks of plotting and conspiracy, involving the scheming to have fake electoral states, all of that, and very little of that became clear in today's argument because the court was obviously desperate to avoid focusing on what donald trump did, or why what he did was exactly what the frameworks of the 14th amendment had in mind when they said if you do that you are never gonna get another chance. they did not want to talk about that, they talked about possible consequences. they fear that maybe >> president on trump engaged in someone would pretend that insurrection. forgetting that there are safeguards against that. that the u.s. supreme court is in a position to define what constitution's an insurrection.

that's why it was being asked to do in this case. and when some of the justices, including justice gorsuch, and the chief justice, and even justice kagan suggested that colorado was trying to rule the whole country by applying some obscure standard or obscure rules of evidence to decide what was an insurrection, that was a fantasy. colorado isn't saying we have the last word, they were just doing their job by applying the constitution. subject to the u.s. supreme court's final review and. the idea that one state might make a big difference is hardly novel. have they ever heard of the electoral college? what about florida in bush v. gore in the year 2000? our whole system delegates enormous power to the states under article two of the 12

minute. it gives them anonymous power to run even the presidential election. and then running that election, they really need to obey the constitution. part of which is section three of the 14th amendment. now there were other aspects of the case that i found intriguing but why don't you ask me what you have in mind and i will rather engage in a consultation then a soliloquy. >> you did touch on one of the things that i was struck by which is the miracle of the one state. how could that possibly be in an election. for me what was so strange about it was that was raised in that room, in that room where not just one state decided, but one person because it was a 54 decision in bush v. gore and one of the people in that decision, clarence thomas, was sitting on that bench. and so that means that a 54

decision. it literally came down to one person. whoever that fifth vote was. decided to the president of the united states would be. >> that is right and in fact apart from clarence thomas, amy cohen barrett and john roberts and neil gorsuch, sorry and brett kavanaugh, were actually on the team for george bush in the case of bush v. gore. so it was hardly something that they could've forgotten about. the fact is that under our system, states have enormous responsibility. but that responsibility needs to be exercised consistent with the united states constitution. and the idea was floated that maybe if jack smith had charged donald trump under code 23 83 with the crime of insurrection and if he were not absolutely

immune to the issue coming to court just within days, then there would be some magic wand and this problem would've resolve because we would all know what this direction was. but in fact it was the u.s. supreme court that would have to decide whether what happened constituted an insurrection. it's a shell game. to simply move things from one column to another. besides the decision in this case is how it reacted too soon. we don't know if this insurrectionist is gonna be excused by a vote of two thirds of the house and two thirds of the senate. which could lift the disability. you have to wait until later.

but of course later is going to come. when he loses so decisively that we are read of the problem. when donald trump is at the finish line at that point it is impossible to say that now, having waited this long, we can supply section three of the 14th amendment. section three is going to rear its ugly head in any event. or it's beautiful head. in fact it's when donald trump tries to take office again, if he does, there will be a lot of people who say that he is obviously disqualified because he is an insurrectionist. and as an insurrectionist, he is at the very heart of what section three protects the country from. its decision in this case, the court is not likely to hold

this not an insurrectionist, it's not likely to take the off ramp of saying that the presidency among all of this is not governed. it's likely to rely on a much more procedural ground like it is not appropriate for the state of colorado in deciding who could run for the primary to will this enormous power and kicks the cannon down the road. it's both the question if this was not an insurrection, what could've been? if the presidency is not covered, what offices possibly could be? those issues will become paramount at a time when it is impossible to regress them calmly as the court could've done today had it been willing to grapple with the real issues in the case rather than trying to make it look like it was extraordinary in our system to give the states enormous power.

>> professor laurence tribe, thank you very much for starting off our important discussions tonight. and neal katyal and andrew weissmann will join us next! we!

only sleep number smart beds let you each choose your individual firmness and comfort. your sleep number setting. and actively cools and warms up to 13 degrees on either side. now save 50% on the sleep number limited edition smart bed. plus, free home delivery when you add an adjustable base ends monday. only at sleep number.

>> 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,diffic i noticed it is something that you've been covering, and she had a different take on of what she took abeen wrothatrights wh about the confederate insurrectionisyou t which is thcould be ca federal insurr thactube saying that. and it still doesn't, -- it doesn't totally answer the question bestilthis s anti-democratic. issue.two re o 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.

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. that is next.

what is cirkul? cirkul is the fuel you need to take flight. cirkul is the energy that gets you to the next level. cirkul is what you hope for when life tosses lemons your way. cirkul, available at walmart and drinkcirkul.com.

tonight president biden and just a report by republican special prosecutor who investigated joe biden's mistake in possession of classified documents after he left the vice presidency. we report says the evidence suggest resident biden did not willfully retain these documents, and that they could possibly have been brought to these locations by mistake. >> this was an exhaustive investigation going back more than 40 years, even into the 1970s and -- the special

counsel acknowledge that cooperate completely, i did not -- i saw no delays, in fact that was so determined to give the special counsel what he needed, i look for a five hour in person, five hour person interviewed over two days on october the 8th and ninth of last year even though israel had just been attacked by hamas on the seventh and i was very occupied. it was in the middle of handling an international crisis. special counsel wrote, i quote, several material distinctions between mr. trump's case and mr. bidens are clear. continuing to quote, most notably, after giving the multiple chances to return classified documents to avoid prosecution, mr. trump allegedly did the opposite. according to the indictment, he notley refused to obtain documents for many months, he also obstructed justice by enlisting others to destroy evidence and then to lie about it. we contrast and say mr. biden turned classified documents to the national archives, the department of justice, consenting to the search of

multiple locations, including his home, he sat for a voluntary interview, and in other ways cooperated with the investigation. >> you cowrote the special prosecutor's report and as i recall the president in that report sat for zero hours of interview. how would you grade this one? >> there is a part of this report that is really hard to stomach. it job of the prosecutor and whether you are a special counsel or not, is to decide whether there is sufficient proof to prosecute. that is it. if there is, you can say that. if there is, and you say that. what i've been saying is adjectives and adverbs in your personal views of the people and what do you think of them is irrelevant. and it has no place in a report. here is some pluses. one, to have this huge report in front of me, what didn't happen today as merrick garland did not issue a reported

summary saying the president was vindicated. in this situation, he actually would've been right in terms of the park being indicated in which he did in the mueller investigation. and the other places are in order for there to be a crime, you have to knowingly and intentionally retain classified or take classified information. a mistake is not a crime. and this says that there isn't sufficient evidence to charge that crime. there is no evidence to support proof beyond a reasonable doubt of knowledge or of intent. there was full cooperation and no obstruction. clearly this is much more of mike pence and not donald trump. >> not a one page report on mike pence? >> exactly. this could've been just like

mike pence. and here is the deplorable part. this is james's two point oh. the classic example if you want to know who he is it is irrelevant what the president's memory is or isn't. but even if you thought that it was relevant the idea that the example you are going to give is about whether he remembered the death of his son does not tell you anything about president biden and it tells you everything about -- >> andrew weissmann, thank you. sorry we have to rush this, but thank you very much for uncovering that for us. appreciate it. coming up, our history professor, and yale history professor will join us next.

what is cirkul? cirkul is the fuel you need to take flight. cirkul is the energy that gets you to the next level. cirkul is what you hope for when life tosses lemons your way. cirkul, available at walmart and drinkcirkul.com.

>> we know that the president, and speaker of the house or officers of the united states, because the constitution says that they are. but we also know that they do not hold in office under the united states. because of the in compatibility clause, it says they can't. so maybe the constitution to us today, to the reader, might look a little odd, and the --

not presses -- but that is exactly how it works. just a distinction between office an officer. you agree the constitution does make that distinction? there are officers who don't hold in office. >> there are officers who may hold in office but do not swear an oath under article six in that official -- >> joining us now is the professor of american history at harvard university, david blight, and professor of african american studies at yale university, and i want to confess to you, i chose that piece of the argument specifically in the hopes that it would infuriate you the most. and we could get really started with something here. professor faust, this thing of the supreme court trying to figure out the difference between the word office, and officer, 150 years ago, what did you make of that? >> well, i have just listened to your previous guests, and their emphasis on how the court really did not talk about the

subject at hand very much, which was insurrection, i want to just put the answer to your question in the context of that commentary in that four people in the 19th century who wrote the 14th amendment, which was prominent in their minds was this terror that the civil war was not over and out the south was going to rise again and was not subdued, and needed to be halted. and in that context, i found the discussions today of these tiny minutiae that took up so much of the time, that as an officer, an office is there an oath of someone saying protect and defend as opposed to support, and if you had a bible, and put your hand on, it that was an oath. there were all these little details of intricacies that i think in the eyes of those who roped that section of the 14th amendment, these would've not

been their separate concern at all. if you look at some of the discussions in congress, and the years around, and the months around the 14th amendment screaming, if you look at the news print and the discourse in the newspapers, sometimes the president is referred to in office, sometimes it is referred to as the presidency. it is just a whole different set of concerns that are for grounded. not the ones that seem to take up most of the time of the court today. >> professor blight, is there anything that you would like to add to the supreme court's understanding of the history that they were wrestling with today? >> well, yes. now, i would like to see justice gorsuch go out to a late audience that is deeply interested in this care and try to explain to him why he was wasting so much time on the distinction. somebody should challenge him to do that. there really was not much

history in today's discussions. that could be blamed partly on the lawyers that have been prompted, i suppose. but also, even when it came up, it was very strange. the worst example of all, in fact, the most elin formed is a nice term for it moment of history was on justice thomas, he kept asking why were there not more uses of this section three in the end of the reconstruction and after the reconstruction, when the redeemer's came on the scene, why wasn't this done more in the 19th century? the lawyer finally landed on a right answer which was because of the amnesty act of 1872. they were almost all given amnesty, except the group who had served in congress from 1859 to 1863. that is all of the lawyers needed to say, and the fact that justice thomas apparently doesn't even know that is appalling. i was also struck, lawrence, at

the sheer timidity of the justices to actually take on section three. to use it. to try to work with it. it is not as though some horrible, awesome power that just cannot be used. and what if we end up through this process how often it plays out and it is not over, with section three essentially being erased from the 14th amendment. what would that mean? this precious document, we live under the constitution forged in that 14th amendment. what if you tear out this section which is the only way to hold people responsible who try to overthrow the government

under law. will we be a people of the rule of law if that part of the constitution in essence gets erased? >> professor faust, i was wondering literally what you are feeling and what president white was feeling. what they feel when you are listening to these arguments that are dabbling in history and some of them they start to pretend that they've gone deep into history and they are sifting the details the way that professional historians do. what does not feel like for

professional historians to be listening to that? >> well, it is a little unnerving, actually. jonathan, he said at one point law office history is not a phrase, excuse me, that i've heard before but it seemed to me a very apt one about how you take things from the past and use them in relationship to a case in the present rather than really getting into the hands of those who are thinking it and say, all right, what were they up to? what were their goals? what for their constraints? what was there some stability in putting this forward? i think that david just made a wonderful point where he said what is the 14th amendment for, what was it for, what will we

do without it? and instead, there were these very narrow approaches to how a little bit of it might be taken in one way or another. i would like david to answer this. >> there you go, professor. >> well, drew, you didn't need to do that. i will answer with another example. when justice roberts, when he said gee, wasn't the 14th amendment for the purpose of increasing federal power? the answer is, of course it was. that is what john bingham had in mind. you wanted to federalize the bill of rights. of course it was. and therefore, he wasn't

playing that they don't want to give this to the states. good lord. what was he thinking when he led the holder case, or when he simply gave back to the states control over voting rights instead of allowing the voting rights act of 1865 to stay in place. i guess that is not just that the knowledge is not that deep, we can be very arrogant about that, and we should not be. it is one people twist it and just sherry pickett, and use it for what frankly are, even though they may not always be aware of it, political reasons. and political purposes. there was also a moment i think that it was gorsuch, although i may not have that right. maybe it was alito who said can we really get back inside of the minds of those people who were drafting the 14th amendment? you bet we can. our amicus brief that drew and i worked with, it gets very much inside of their heads. we have and list testimony of them saying what they were doing, why they were doing it, and that it was to be permanent. the answer is yes, we could get inside of their minds on that

one. >> you know, professor, when i listen to both of you, i imagine the framers of the 14th sitting there in the front row today. and just jumping out of their seats at certain points going what do you mean, it is completely clear, what is the matter with you? this couldn't be more obvious. how did they feel, professor faust? >> i often think that way, as well. i jam time together and imagine what someone from the past would be saying in the president. i love that question. and i think that they would be really upset. they would have their minds on insurrection, this was something that they bled and died to overcome in the 19th century. they saw it tearing the country apart, and they glued the country back together. they wanted to make sure that the 14th amendment was for all- time, into the future, and here we are in the future. i think failing to learn the lessons of how our nation was turned, and torn apart in the 19th century. >> go ahead, professor, i would like to hear you on that. >> i would say one of them, at least, would probably get in the way. i would frankly say enough of all of these procedures, come on, stop all of the procedural discussion here. do you realize that 700,000 people were dead in this war? do you realize we are

responsible for the emancipation of the slaves and we are trying to define who they will be in this new world? do you realize there are thousands upon thousands of confederates waiting to get back into power here? those are our immediate concerns. >> also, what is at stake? pay attention to what is at stake. isn't that what they would say? >> exactly. exactly. by waving a bloody shirt, that means reminding people of the death and the suffering of the war, and it's transformations, they were responsible for that. >> thank you so much for refocusing this discussion for us, harvard history professor, faust, and yale professor, david blight, cannot thank you enough. such an honor to have both of you here tonight. >> thank you. >> we will be right back.

why choose a sleep number smart bed? can it keep me warm when i'm cold? wait, no, i'm always hot. sleep number does that. can i make my side softer? i like my side firmer. sleep number does that. can it help us sleep better and better? please? sleep number does that. 94 percent of smart sleepers report better sleep. now, save 50% on the sleep number limited edition smart bed. plus, free home delivery when you add an adjustable base.

>> time for tonight's last word. >> if he is elected, the stock market will crash. >> today for the second in a, row the biden stock market hit another all-time high with the dow closing at 38,726. that is tonight's last word. the 11th hour with stephanie ruhle starts now. starts now. good evening once again. i'mod stephanie ruhle. welcome back to our special coverage on this big breaking news night. todayne the supreme court heard arguments in the case that would take donald trump off the 2024 ballot in the state of colorado. the justices seem skeptical of

the colorado court's decision ts remove trump. here's my colleague laura jarrettwity more. >> it just doesn't seem like a state call. the justice forces to grapple with mr. trump's eligibility of office after six states sued to get him removed from the ballot andm pointed to his actions an provisions in the 14th amendment that disqualifies those who engaged in insurrection or rebellion from holding public office again. >> the attack was incited by a sitting president of the united states to disrupt the peaceful transfer of presidential power. >> all nine justices both conservative and liberal appearing tond bristle at the potential far-reaching consequences of colorado's argument. >> the question you have to yo confront is why a single state should decide who gets to be president of the united states. that seems quite extraordinary, doesn't it? >> chiefra justice john roberts

later raising the idea of the 14th amendment being used as a political weapon by democrats andl republicans alike. >> it'll come down to just a handful of states t going to decide the presidential election. that's are pretty daunting consequence. >> mr. trump's lawyer arguing congress, not states, must decide who's eligible for the presidency and that's the forme president did not engage in insurrection. >> this was age riot. it was not an insurrection. the events were shameful, criminal, violent, all those things but did not qualify as insurrection. >> let's bring in john allen, senior national politics reporter for nbc news, kate beener, and joyce vance who spent 25 years as a prosecutor. mark, you know this court very well. were you surprised how skeptical all the judges team to be when it came to keeping trump off this ballot? >> i certainly wasn't surprised

the conservative justices were skeptical of the argument of colorado voters challenging trump. i wasin really surprised that t liberal justices especially ketanji brown jackson jumped on the attorneyja arguing against trump to say, you know, i think that you've got the history wrong, i think you've got the text wrong and really embracing one of the most far reaching legal theories one of trump's attorneys have put forward to the court. justice thompson gets a lot of flack from the right but of all theht justices nobody pushed harder to show or at least to claimat the 14th amendment's disqualification clause doesn't apply to the president. that was her belief and she really stuck to her guns. so, yeah, it was a surprising day. going in i thought 6-3, maybe

7-3 for trump, now i think maybe 8-1 or maybe even 9-0. >> kate, what about you? >> it's interesting. yield like to refer to the fact we just heard about ketanji brown jackson. it's true she reiterated an argument the president made. andre i think this also speaks n justitute what the justices were thinking but the performance essentially ofhe the lawyer mr. murray who was representingaw t colorado voters. i would say we've all heard a lot of oral arguments. i don't know this was the most confident oral argument we've ever coheard, and it felt there wered times when all the justis including sanchez and kagen who he has clerked for were almost frustrated they weren't able to getle straight answers out of h, he at several points declined to answer the question that had been asked, wanting instead to

answer something else. even in that exchange with jackson it was hard to tell whether or not that was something she truly believed or she felt this was not a great argument mades by the trump lawyers. if you listen to the argument with the trump lawyer, with mr. mitchell, it was clear amy coney barrett and others were saying this is a ridiculous argument, of course the president is an officer under the constitution. it's almost -- so you could also interpret it to mean she was just trying to get out of him a cogent argument, shoot down this thing we were just skeptical of. you just heard many, many of the justices again across the spectrum be skeptical of the argument put forth by trump's lawyerth that it doesn't count because the president isn't explicitly idnamed, and she couldn't even get that out of him. luckily, these decisions aren't made on oral arguments alone but they're made a on the facts and research people do. but it was an interesting performance i think by a the

lawyer representing colorado. >> joyce,ep now that this heari isth basically out of the way, w could that affect the other case that the supreme court could be facing just days from now, the one for absolute immunity? >> so, steph, you know, i was the appellate chief in my office before i was the united states attorney, and i will tell you that appellate lawyers are a little bit of a breed apart. they live in rarefied air especially when you're talking about people who argue in the supreme court, and these cases, these lawyers really do deal in facts ands law. and they don't deal in politics and theea commonplace every dayf life. at least not in the normal situation. but this situation is far from normal. it'sr certainly not lost on an of these justices they're being drawn into a political environment that they do not want to be in particularly with all the drama surrounding the court over the last year, all of the ethics challenges, the

concern today about justice thomas participating in the case despite his wife's involvement on donald trump's behalf following the 2020 election. so lots of reasons for the justices to minimize their involvement in these cases involving donald trump. they certainly do not want to be seen as deciding the outcome of the 2024 election in any way. >> john, let's talk about take-aways and misinformation because your average americans was not listening to the two hours of audio today. but if you were, you would not have heard any debate, discussion, argument, or decision over whether or not donald trump incited an insurrection. everything was about the amendment, what job in government is considered an officer, past cases. but assuming -- and i know i'm assuming that the justices side with donald trump, september risk that the right or

at least the trump machine will use this to say, see, he had nothing to do with the insurrection, move on? >> yeah, absolutely, that risk exists, stephanie. but -- and you're right the justices danced around with the exception of ketanji brown jackson danced around the idea if this was actually an insurrection. yes, if donald trump wins this casese i absolutely expect him go out there and say, see, it's a riot, not an insurrection. that does not mean the justices need toan find in favor of colorado in this and i think it would be pretty surprising at this point ifbe they did. >> mark, it's good it was only audio because we do not want to watch any of those justices dance -- to john's point that's exactly what theyhn did.

they avoided the question of whether donald trump q engaged insurrection. why isn't that? >> n well, i think that's obviously t the most controversl and political question embedded in this entire case, and there are so many other meaty legal issues. does this clause cover the he president? is it self-executing, can states enforcese it, or does congress have to step in? but the justices really wanted to focus on the more dryer technical aspects of the case. remember until a few days ago it really looked likely donald trump himself was going to appear out of the supreme court and try to sit in during oral arguments, make it one of his courtroom campaign stops. the justices are very cognizant how all of this plays on the news and to the nation. they knew that we would be here talking about their audio, examining and scrutinizing their questions, and they didn't want the coverage to be about whether this was an insurrection. they wanted it to look like nine

lawyers t doing dry lawyer stuf. to that extent i think they did succeed and i do think they were on generally good behavior. there wasn't the kind of grouchiness or anger that sometimes flashes through the justices in arguments like tis. they all wanted to get to the bottom of the case and they did end up finding consensus in the end. trump will twist that into something ittr isn't. ruling for trump does not mean he didn't engage in n insurrection, and tus means the theories put forth by colorado voters here didn't cut it at the poll. >> joyce, there's been a lot of talk lately about the quality, the poor quality of donald trump's lawyers. but we did not hear that today. what do you think? >> no, he was capably represented today. and h something i noticed asked appreciated is this was not a lawyer pandering to an audience of t one. this was a lawyer who conceded arguments when he didn't have a strong position. he

behaved in the way we assume lawyers will behave when they argue in frontll of the supreme court. there's nothing remarkable about that. it's only remarkables in the context of donald trump who does not respect or have any regard for the rule of law, and he seems to insist his lawyers, by and large, stand with him and not to their obligation to the court. in that sense this was a refreshing change of events. >>ha katie, we often say it is important that the country is able to hear the actual arguments as opposed to just getting the final decision. do youth believe that's the cas inel this instance? because when you actually listen to this one, it's highly technical, and your average person who a just wants to tune in, they don't get what they think they're going to. >> it is highly technical, but most legal proceedings will be highly technical in many, many points. even for something like the classified documents case that feels very straightforward, did he or did he not keep something

he shouldn't have, even in that case there'll be a lot of technical jargon. as joyce had mentioned before, in a year or more when we've had serious questions about the credibility of the courts, et cetera, to hear the justices ask their question, to feel they are putting forth good faith questions,ai they're listening with respect, amy coney barrett was extremely hardoon trump's lawyer,rd mitchell. i mean there were times she could barely mask the fact she was not buying it. we really see the law, you hear the law at work. it's not a partisan exercise. it was an exercise of getting to the bottom of serious questions. we canri debate whether or not they were trying to get to the bottom of the right questions. but for the public to overhear that i think is really, really healthy. >> john, last night you'd said to me how maybe treacherous this

was, it could backfire on democrats. this idea trying to remove donald trump from the ballot could beve seen as highly political. do you think there are any democrats tonight that the court system seems skeptical that colorado should do this because atdo the end the day they want see donald trump beaten at the ballot box, no excuses. they don't want to give him a side door. >> oh, absolutely. that ish, a significant percente of the democrats i talk to in term of whether elected official inel washington, d.c. or states. they definitely want to see donald trump defeated at the ballot box, and some of them would like to see him held accountable for what they see as criminal activity with regard to january 6th. so that's a different case. and i think there is a significant fear amongi democrs this will have a backlash effect if trump is kept off the ballot in certain states. you know, the problem, and we talked about this a little bit last night potentially for backlashes, you've got these states, colorado, and maine, you know, that are not swing states

that might keep him off the ballot.hi and the reaction inf the swing states, there's a handful of states and people who don't pay attention toe the system, loos republicans or loose democrats could rally around trump seeing some unfairness in the situation. >> injoyce, before i let you guy go, i want to go back to something we were talking about in our last segment, president biden and that documents report. i just want to draw a comparison because in the trump university lawsuit, donald trump cited memory lapses 59 times. in the muller report, different variationsen of i don't know times.r 30 but even beyond president biden and president trump, isn't that what most people say when they'rele questioned by authorities, i don't know, i don't remember?

>> you often see some variation of that. it was very frustrating as a prosecutor for me to learn how many people have bad memories when they sat down with me in my office to talk about the fbi agents. look, sometimes our memories do dim with theri passage of time. in the case of joe biden some of these documents have been in his home for many years, and we were talking about events that transpired more t than five yea ago. so even someone young and crisp might not have a fresh recollection. but the standard advice that defense lawyers give to their clients is don't try to manufacture a memory. if you don't remember, don't be afraid to say that you don't remember. in some't cases that translateso a built in defense where you have a witness who consistently says they don't remember in order to avoid any possible liability. >> joyce, thank you so much. katie, mark, john, thank you all

so much as well. and on top of all of that news there are delegates up for grabs tonight inte the state of nevad and the u.s. virgin islands in the race for the republican presidential nomination. it's like oh, my god, more news. donald trump is basically runningdo unopposed in tonight' nevada caucus. and nbc news projects he has indeed run. my dear friend vaughn hilliard joins us live from vegas tonight. vaughn, everyone else from vegas is gearingev up for the super bowl,p going to parties, and there you are -- >> reporter: what are we doing, steph? >> -- talking donald trump and his- unopposed caucus. how's it goingca in vegas tonig, vaughn? >> reporter: i feel like i don't know how many conversations we're going to haveee over the course of the year where folks are actually having fun with their evenings and i'm standing at anen event like this. not that this isn't fun. okay, donald trump is going to taking stage in a few minutes

to celebrate his victory here in the nevadato caucus. he also won the four delegates coming out of the u.s. virgin islands. after tonight he would have securedr 3.8% of the total delegates here so far that have been available here. for donald trump he ran against nobody in this race. it was for him to lose. he won all 26 delegates. of course none of the above on tuesday night beatf nikki hale. she took part in the state primary. i am told donald trump did have dinner tonight with merriam adelson. for donald trump he'll be movino onto south carolina next where he'll have a rally outside of myrtle beach. he'll be holding an event later in the week for south carolina as well. for donald trump here, steph, you know, it's hard. he usesna a stage here as an opportunity not only to defend himself legally and also point to joe biden who he says he's prepared today take on here over the next nine months ahead of the general election. >> we will see.

and obviously in a case see esh wasn't on the ballot -- what's next for her? excuse me, not ballot. she wasn't chosen by the caucus in the cstate. >> reporter: the state of nevada, the gop, they want today have a caucus despite a primary being put in effect and run by the state government and the nevada gop who are close allies of trump, of course their gop chairman, michaelou mcdonald, h was one of theae fake electors indicted here in the state of nevada. the executive committee they flew just last month to meet donald trump over at mar-a-lago. and nikki haley called the caucus system all but rigged in favor of donald trump. and so the candidates here were presented the option. take part in the caucus run by the party or in the primary run by theth state. all while knowing delegates would only come from the party run caucus. and nikki haley thought at least she could get a good headline by taking part in the primary and winning the primary. of course she got anything but a good headline by using to none

of the u above, clearly trump supporters still coming out for just thell purpose solely of beating her despite donald trump's name not being on the ballot, steph. >> toughe night for her. vaughn, thank you so much. great to see you. and now i hope you can have a good time in vegas. when we come back we covere the legal, now it is time for thele politics. we're going to get into today's supreme court and a special counsel report with simone sanders w townsend and david jolly. and later u.s. funding for ukraine advantses in the senate as president zelenskyy fires his top military commander. general barry mccaffrey is here to break down what it all means. special coverage of "the 11th hour" continues right after this. l coverage of "the 11th hour" continues right after this

is it possible to count on my internet like my customers count on me? it is with comcast business. keeping you up and running with 99.9% network reliability. and security that helps outsmart threats to your data. moaire dida twoo? your data, too. there's even round-the- clock customer support. so you can be there for your customers. hey billy, how you doin? with comcast business, reliability isn't just possible.

thanks. it's happening. get started for $49.99 a month. plus, ask how to get up to a $1000 prepaid card with a qualifying internet package. don't wait, call and switch today!

we are still tracking trump's high stakes legal battle before the supreme court, so let's bring in simone sanders townsend, the chief spokesperson for vice president harris. you of course know her as co-host of the msnbc morning

show "the weekend." and former republican congressman david jolly of florida. we've got a lot to cover, gang. simone, let's talk about today's arguments. what were your biggest take-aways? >> look, my biggest take-aways first and foremost is that there was great ground for the lawyer who was arguing for the colorado plaintiffs to stand on i don't feel as though the lawyer adequately stood his ground. there was federalist papers from hamilton he wrote the president was officer of the united states in the last part of the paragraphs. if you look at the debate from congress at the time in the senate in 1866, and the senator's own words, there was much debate about section 1 of the 14th amendment, but section 3 was also up for debate. and the question whether the

president or vice president was an officer of the court came up. i tweeted about that in this moment, and as soon as i tweeted it 2 minutes later jason murray brought up that argument and then kind of walked away from it. so while i'm a lawyer staff, i used to do the talking points for the lawyers i'm very well versed taking what the lawyers have to say, and taking what the lawyers say and repeating it. and i think the effective argument about a full throttle defense about why, what the colorado supreme court came down on, the decision that they made was correct was not presented there for the people to see. i do think the justices were quite tough on all of the legal counsel, but the justices usually are. i watched supreme court cases, so i wasn't surprised at the tough questioning. i was surprised by the defense that was brought forth, all the conversation and interviews and press calls that the counsel -- that the cocounsel for the colorado voters had done in the lead up to and frankly after --

because jason murray was on earlier today with our colleague rachel maddow. and i thought he made an effective case in his post-interview, not so much deferring arguments. >> david, what'd you think? >> i've always thought that the challenge for the colorado voter has been too steep of a hill to climb. i think it's been ambitious to think the supreme court much les any real federal court at this point would grant relief and suggest that state by state a decision could be made if it's the supreme court of a state or secretary state of a court, that state by state we could have different rules regarding qualification or disqualification of donald trump. on the question of insurrection, and know there has been some -- some broad and really, you know, from conservative to progressive legal scholars who have suggested no, no, no, does this make sense. but it really can't make sense

without a finding of fact, without a charge of insurrection, a criminal charge of insurrection from donald trump or a confession of insurrection from donald trump. i've always been a skeptic. i think we're always looking as all scholars and observers have said that the colorado voters will ultimately be found to not be given the relief they're seeking, to keep donald trump off the ballot, and that's okay. i think there are more arguments that have greater merit that could ultimately bring down donald trump. it's a question of -- of whether or not he can be charged in the january 6th case i think will go against donald trump. ultimately the legal system, steph, is one of delay and latency. why are we on the eve of an election with all these questions not being decided? why hasn't it occurred earlier? >> that's really important. do you believe when we look back on this, david, there will be a lot of criticism to merrick

garland on why are we here basically, you know, eight months before the next election when it didn't need to be this long. and one of the biggest issues today was, well, he wasn't charged with insurrection, and that was also the choice of merrick garland. >> i do. i understand one of legal scholars who say he doesn't need to be charged, but let's be practical about this. if you look at the bugts v. gore decision there are such cases the court realizes we're just playing referee. it's better to back up kicking donald trump off the ballot for insurrection if in fact he wasn't charged with insurrection in this matter. but the real question of latency, why has it taken so long? would the department of justice have ended up here without the january 6th committee of congress? why does it take congress so long? why is impeachment actually such a partisan issue? those are hard question whz uyou're dealing with such an issue of gravity. the latency in the system is not

only something that needs to improve, but also something a maniacal person like donald trump knows how to take advantage of. he's going to do it and say test me, try me, let's see how long it takes to hold me account nl because by then i might be president again. >> that is exactly the game he's playing. all right, you, two, we're not letting you know anywhere. when we come back we'll let you get their thoughts and president biden responding. "the 11th hour" continues. prest biden responding "the 11th hour" continues. with nonsteroidal anti-inflammatory medicine directly at the source. voltaren, the joy of movement.

♪oh what a good time we will have♪ ♪you... can make it happen...♪ ♪♪ try dietary supplements from voltaren for healthy joints.

one of the reasons you were not charged is because in his description you are a well-meaning elderly man with a poor memory. >> i'm well-meaning and i'm an elderly man and i know what the hell i'm doing as the president to get this country back on its feet. i don't need his recommendation. >> how bad is your memory, and can you tone as president? >> my memory is so bad i let you speak. >> has your memory gotten worse? >> my memory has not gotten -- my memory is fine. >> president biden struck a defiant tone after the release of the special counsel report. simone sanders-townsend and david jolly are still with us. david, you know this white house. what was your take on their response? we don't see many presidents many nights a week come out swinging to an angry and aggressive press corp, but that's what he faced tonight. and he knew that's what he'd be

walking into it. >> this was not a good day for the white house. and i only say that because they were forced off message. not because the president handled it poorly, but i think the challenge for the press is show us where joe biden has fallen down in terms of his ability to govern, show us where age has impacted his leadership because you can't, it hasn't. i would suggest when the white house has an opportunity and it's an important one because if there is room for voters to grow more concerned about the age question, you really have to redirect this to where it matters. and where it matters is this. this race in november is not about age. it's about ideology. and instead of challenging the press and challenging the critics on the president's age, challenge the critics on the ideology of joe biden versus donald trump. who is going to raise up an economy for all people? who's going to protect your franchise and suffrage? who's going look look out for reproductive freedom, access to

health care, security measures? who is capable of governing in this environment? all you have to do is look at what republicans are doing right now, you can have a 30-year-old republican right now. age doesn't matter, ideology does, and joe biden has it, and he's taken the country in the right direction. serve that to the press and the critics, and let them swallow it. >> sore simone, if you want to make it about age, they cancel one another out. you have two elderly men with a penchant for forgetting things in donald trump and joe biden. the difference is as it said in the report, well-meaning elderly gentleman. is anyone going to make the point donald trump and his misstatements or his misactions are well-meaning? >> well, let me think two things, first and foremost the whole reason there was a report in the first place and the question on the table is did joe biden do anything appropriate in which he had classified documents found in his

possession after he was in office? and the report says in the first parafwrf, no we're not charging him, and he didn't do anything worth being charged. and pieces of the report detail, it was the president's own personal lawyers who found the documents in the first place, called the white house council, who then alerteded the archives all of them within one day. so that is what the report was about. what we'll read in the report talking about mental acuity and his age that's let's be very clear the white house has been fighting donald trump on the ideology. that's literally joe biden's entire ethos why he's getting back into running for re-election. he's been making the effective case david said he should make. what he's not done is take the age question directly to the heart of it day in and day out, the way in which that they and the president brings the

democracy message, the message about the accomplishments of the administration. i used to work in this white house, so i was not surprised by what i saw today from the president or the white house press corp. they were promised questions on tuesday, on thursday, and they did not get those questions. and then they found out about a last minute press conference, and they were rabid, for lack of a better term. i think people who -- because we've not had a lot of press conferences from this president, which is just the facts, that is not something that folks who tuned in are used to seeing. but let's just be very, very clear here. the questions about the president's age, they are not made up. at one point they lived in the dark corners of the internet, but they have seeped up out of the conservative's random conspiracy theory corners right up into main stream voters in detroit, democratic voters across the country. and because that is something voters themselves are bringing up, it is something that the president has to speak to, and i

think if people just watched joe biden, it does speak for itself, but the campaign has to give people the opportunity to see the joe biden that we saw today. >> well, that is the thing. questions about joe bide's age aren't just coming from four corners of conspiracy theories. every day voters all the time talk about joe biden and donald trump's age. there are scores of public companies that don't allow board members to be over a certain age. it's not a new topic that comes from some far reaching place. however, the right is going to have a field day with this report, but they can talk about the report and things joe biden has said or they can watch this from donald trump. >> and we did with obama, we won an election everyone said couldn't be won. and we have a man who is totally corrupt and the worst president in the history of our country.

we would be in world war ii very quickly if we're going to be relying on this man. nay never report the crowd on january 6th. you know, nikki haley is in charge of security. we offered her so,000 people, soldiers, national guard, whatever they want. they turned it down. we have become a drug infested, crime ridden nation which is incapable of solving even the smallest problem. we are an institute and a powerful death penalty. we have to bring in the death penalty. look at things like even supply chains, things we never even heard about. you never heard that term. >> you're right, i've never heard the term supply change because it doesn't exist. all of that does not even include the 91 counts against donald trump. so on what grounds, david jolly, are people saying it's over for joe biden after today? i mean that mash up we put together, it just took a few

minutes. we didn't have to do a lot of digging. >> simply because it's -- age is bad issue for joe biden to take on directly. it's serious. it is a serious liability. but that mash up shows that i think the opportunity for biden to respond with the questions of age is about fitness. donald trump did not suggest you should inject bleach into your veins to save you from covid because he was old. he did it because he was stupid. he didn't have that mash up of errors because of his age. he did it because he's un fit for office. and that is the clear answer for joe biden on questions of age. show us where joe biden has proven incapable to govern because of his age. has he slipped up on an issue that's affected his ability to govern? no, you can't point to it, conservative critics. is it on message for joe biden today to be defending his age first person? i don't think it is because it feeds into the president's

highest negatives. >> but he has to. to be clear the reason the president went out there and said what he said today, this was the second time he spoke about that report today. the first time she spoke he did not speak about the age issue or mental, any of that. but joe biden watches television, and his aides watch television. and they see the tweets. and every single reporter look at that special council report i have right here next to me and it all tweet out the same lines. it was the conversation on television across various cable networks. and it created the environment where the president had to come out and defend himself. and frankly, now other democrats need to step up and defend him as well. there's a piece here campaigns have to do, but, like, was it responsible for people to pick out one piece of the report? i don't think so. >> i understand your position

and your craft, but he screwed up with the alicize sisi reference. he actually showed -- i guess that's my point he stumbled in that moment and in part arguably because of age. does that affect his ability to govern, absolutely not. if he's going to be the messenger of his team that's the contrast he's capable of drawing and the american people need to understand. >> thank you so much for being here tonight. when we come back, we have got to talk ukraine. volodymyr zelenskyy firing one of his top, top guys. we're going to find out why on the other side of the break. the other side of the break.

hey, you should try new robitussin honey medi-soothers

for long-lasting cough and sore throat relief. try new robitussin lozenges with real medicine and find your voice. you know? we really need to work on your people skills.

why choose a sleep number smart bed? can i make my side softer? and find your voice. i like my side firmer. sleep number does that. now, save 50% on the sleep number limited edition smart bed. plus, free home delivery when you add an adjustable base. ends monday.

the two-year anniversary of the war in ukraine is fast approaching, and the war is at a very important moment. in ukraine president zelenskyy replaced his top general, and here in the united states the senate finally advanced a bill that would include aid for ukraine, but it is unclear if it will pass through either chamber. with that, i want to bring in retired four-star u.s. general barry mccaffrey, a decorated combat veteran in vietnam and a former battlefield commander in the persian gulf. i'm so glad you're here. help us understand this. what do you make of this move from zelenskyy at this point in the war? >> i look at the ukraine battlefield as a real mess.

there's been massive ukrainian casualties. the ukrainians are running out of munitions. there is a request by the commanding general of the ukrainian armed forces for a half million conscripts be called up, which zelenskyy politically didn't think he could do. so zelenskyy looked for a new team. i remind people president lincoln during the course of the civil war fired four commanders before he got a u.s. grant and achieved victory. so zelenskyy in charge of the defense of ukraine, he moved in a good direction. >> what do you know about this new military chief? >> he is an older guy than the current commanding general. he's soviet trained. he's been commander of the ground forces. he was extremely effective in defending kyiv and then

recapture and destroy the russian forces around kharkov a year later. he has probably shown less than creativity in dealing with the russians on the eastern front. so it's not clear to me that he's the new thinker using technology instead of casualties zelenskyy is looking for. but zelenskyy said i'm going to promote five new generals and two colonels. he's trying to reinvigorate the team. the current commanding general who he just fired, by the way, wrote an essay, which is all over nato saying the war was at a stalemate, which is a political problem for zelenskyy. that's another reason i think that zelenskyy is looking for a new team. >> so where do things stand right now in the war? how important are these next few months? >> crucial. if the united states doesn't get the $60 billion package through,

there is a serious problem. now, having said that, nato has stood up to the issue. the european union just put a $52 billion package of aid to ukraine through. the european union alone has a gdp economy that russia has 15% of that gdp. so europe can shoulder more of the burden, it's clear but without the united states, without our leadership, our aid, munitions, equipment, training involvement i think it'll collapse. 44 million ukrainians, half of them will be in western europe. it is it will be a disaster for u.s. national security interests. >> hopefully members of congress are listening to you. general, thank you so much for joining us on this late night. we'll be right back after this. s

okay, guys.

you still up with me? i know we say it a lot around here, and it can lose its meaning over time, but today -- today was one of those days you will remember where you were days. just think about it. the supreme court's historic arguments, the special counsel's report that was very difficult for president biden and that he hit back with a fiery response tonight. it is a lot and it can feel exhausting and overwhelming. i hear you, i feel you, i know it. so as we closeout another one of those days for the history books, let's do this one thing together. you ready? let's take a deep breath. i certainly know that i needed one and my team needed one after today. i hope you feel better. i do at least a little bit. and we will be back here again tomorrow night at the end of the day to do it all over again because i guarantee there's

going to be a whole lot more news tomorrow. and on that note, i wish you all a very good night. and if you're extra sleepily and you're a little late to work tomorrow, rachel maddow said she will write your boss a note. but until then from all our colleagues across the network of nbc news, thanks for staying up late with me. i'll see you again tomorrow. i'm an elderly man i i know what the hell i'm doing. i'm the president. i put this country back on its feet. my memory is fine. take a look what i've done since i've become president. none of you thought i could pass any of the