tonight on all in. >> i tell the truth. all i can do is tell the truth. >> defendant trump declined to testify as the defense rests. >> i will be rested. i don't rest. >> tonight, the collapse of trump's final witness and the judges crucial decisions about what the jury will decide. then, another former lawyer silenced in court. >> i don't wintemute you, but i need to move on. >> the rnc head of election integrity arrange for voter fraud. >> you have the right to remain silent. >> white samuel alito's ethical nightmare at the supreme court is not going away. >> created a situation that we are all talking about. so it was a mistake. >> all in starts right now.

good evening from new york, i'm chris hayes. after five weeks, the first criminal trial of a former u.s. president is nearly over. the defense rested, this morning, it called only two witnesses. despite all his bravado and insistence to the contrary, yeah, donald trump was not one of them. we knew that, right? instead, we heard briefly from a paralegal, attorney todd blanches from about phone records, for a man by the name of robert castella took the stand. costello is a former federal prosecutor, a very close associate of rudy giuliani, the twice indicted former mayor of new york city. more about him later in the show. and, also, donald trump's personal attorney while he was in the white house. i think it is fair to say that costello's testimony, this week, backfired on the defense. how much remains to be determined. but, trump's attorneys main

reason to put that man, robert costello understand, was to directly contradict and impugn the credibility of the prosecution three witness key witness, michael cohen. and i got to say, it turns out robert costello might be the only person in the country who can make michael cohen seem even-tempered by comparison. costello acted like what could best be described as a petulant teenager, rolling his eyes and muttering under his breath, at one point saying to strike something, but that is not his job, it is the judge. after crossing the judge, like he tried to stare him down at which point the judge said, are you staring me down? and cleared the courtroom. after clearing the courtroom, the judge called costello's conduct, quote, contemptuous, in the more technical narrow sense of contempt of court, and threatened to remove him from the stand and strike his

testimony from the record. that man, costello. again, the big star witness from the defense, the one person they are putting on returns to the stand today for cross-examination. now, remember, at the center of costello's testimony, is a 2018 meeting he had with kevin. that is after cohen had a search warrant executed by the fbi. as kellan tells it, he is having this back and forth with costello, putting a very high- pressure sales job on him. the implication of which was that they had to kind of keep cohen in trump's circle to prevent him from flipping beginner, costello was aligned with rudy, he was aligned with trump, so hire me and it'll stay in the circle. now, costello says he was just there to offer legal services. that is the main sort of battle here over what happened, and today, prosecutor susan hollinger said quote, you discussed how connected you were to rudy giuliani, correct? and costello responded, that is not true. hollinger then read costello an

email costello wrote to cohen two days after the meeting which stated, and i could come here, i am sure you saw the news of rudy joining the trump legal team. i told you my relationship with rudy could be very useful to you. costello's words. the prosecutor also read an email, he writes to a legal partner the same day, quote come all the more reason for him to hire me, because of my connection to giuliani, which i mentioned to him in our meeting. so again, you mentioned giuliani in the first meeting. no. under oath. there are two emails here in which you are like, i mentioned giuliani. okay. and for the coming occasions, it is clear that costello continued to dangle his relationship with giuliani, and by extension, donald trump, over cohen's head. in another email, quote, i spoke with rudy, very positive, who i love, which i will say is sweet. adding, quote, there is never a doubt they are in our corner. rudy says this medication channel must be maintained,". he said tonight, we have friends in high places.

ps, some positive comments about you from the white house. now, you might be thinking that the invocation of giuliani and trump repeatedly by this man does not definitively prove costello's intentions, but in a stunning example of something you really don't want to put into writing, prosecutors today read another email, again from costello, to that same legal partner, quote, our issue is to get coman on the right page without giving him the appearance we are following instructions from giuliani to the president. and when you put it like that, it sure sounds like he was following instructions from giuliani and the president, doesn't it? the defense final act, there one big witness, did not, i think, to a great job exonerating the client or even locking down the credibility of the man he was supposed to knock down, michael cohen. i have to say, i am following this trail very closely. not as closely as some of our next guests who were in the courtroom, but i find michael cohen on the core matters of fact that are relevant to the

charges, believable. that is in large part, due to the extensive documentation provided by all kinds of people including robert costello himself. not to mention, the lengthy paper trail outlining each step of the scheme to repay cohen for the hush money he paid to stormy daniels to cover up the sexual encounter she had with donald trump that the attempts to hide those reimbursements billed as legal payments, the basic contours of that, was a stormy daniel paid? did cohen pay for it? was he reimbursed? all of that is not really in dispute. a week from now, when closing arguments start, this will be in the hands of the jury, and they will ultimately decide the former president's fate. joining me now are two people inside the courthouse today. legal correspondent lisa rubin, and "new york times" investigators reporter susan kravitz, to have you here. i missed the costello fireworks yesterday. i was following it, i was even texting, like, is this is as insane as it sounds?

so, the costello experience in that courtroom? >> you're not going to sell me out by reading my response? the costello experience in the courtroom is a really good instructive lesson on how demeanor matters. because, you can say all sorts of things about misdeeds and as long as you remain polite and contrite, and so synced, jurors might believe you. michael cohen is an illustration of that. what was so bizarre is that the robert costello that we saw over the last couple of days reminded me of the michael cohen that we saw at the civil fraud trial. >> that was exactly the fear of everyone around the prosecutor's office. >> correct. >> even to the point that in the same way that costello said, strike that, or, the email speaks for itself, which is also something lawyers say in defense of clients, for example. michael cohen, at that fraud trial would say, asked and

answered very bombastic we. the role reversal was very telling. i want to read you, chris, another email that came out today toward the end, because it is maybe the worst example of how costello is just seeking to advance donald trump's interest and not michael collins. at one point, he writes to his partner, jeff, the person who had a relationship with cohen, and said, tune into cnn and see how they are playing this up. cohen has to know this, yet he continues to slow playoffs and the president. is he totally nuts? what should i say to this blank, he is playing with the most powerful man on the planet. and by that, costello, despite his high opinion of himself did not mean him, right? he meant donald trump. >> can we put that full screen? what should i say to this blank? he is playing with the most powerful men on the planet. so, right. the story cohen is telling is, you are donald trump subdued and i am there -- and then he is

writing this. what did you think of the cross ? >> i want to give some props to the sketch artist in court, who caught that moment. we just had it up. the stare down where the judge is like whoa. >> it's good, you are right. >> shout out to jane rosenberg. >> definitely. so, what did i think of the cross examination today, when the government got back up? i thought it was incredible. i mean, just how she dissected him, in the amount of time, and got right to those emails, and i think laid bare that he was an agent of giuliani and donald trump, and no wonder michael cohen -- you know, the whole premise of having costello up there was to discredit cohen, because costello could come and say, well, he never admitted that he made these payments to me. and michael cohen has said, i was always suspicious of the sky., no wonder.

i was going to say, know something sherlock. >> there is one piece of destiny castillo gives where he says cohen told him i don't have anything, and in some ways that is relevant, i can see that the defense wants to get that in. we talked to this guy and he says i got nothing. so, you want to plant the seeds that he invented it later. right? but, given the broader tools contours, there are two stories about this interaction and the cohen story, to my mind, the testimony that i saw in that room when i was there, and from the emails, the cohen story seems to match the other evidence much better than the costello story does. right? is that fair? >> absolutely correct. there is also another program problem with costello's story. in order to credit costello's story that michael cohen lied, you have to believe that he was telling the truth to costello at some point in time, which means, michael cohen tells the truth at some point in time. right? so, it is sort of facially ridiculous, at some point, for bob costello to say, michael

cohen is a liar because his testimony is premised on michael cohen telling him the truth one time. >> michael cohen is a liar and a cheat, but this case will come down to the jury believing, at least at some point, he can tell the truth. it is not like he always lives. >> correct. >> they have to believe him on certain points and that is something that the government will say they have corroboration for. they have interviews, but have conversations, where they have documents, because michael cohen for the criminal documents, he is the through line, there has to be some believability on those meetings that he has spoken to. we have that incredible ellen weissleberg document where everything is sort of cooked and here is how the payments are going to work. and then, ellen weissleberg, and michael cohen then go to speak

to donald trump about it. we have not heard from ellen weissleberg. he is over at rikers, so we have michael cohen's word on that conversation with donald trump, where he signed off on it. it is very important, and they just have to believe him on stuff for there is actually evidence, we just put it up on the screen. >> yeah. another thing about the costello thing. two things. one is a tactical choice. right? the idea is that the defense is trying to say, you haven't met your standards. it happens fairly often. >> they should have done that. >> we don't even have to put someone on, because this case is insufficient. when you start to go down the road, lico, we got the sky. we are going to catch michael cohen lying. and then, it is like parts of the cross on michael cohen felt pretty effective to me, that is now not the last thing in your mind about michael cohen's credibility, it is now costello. >> there are other parts of the cross of michael cohen that never touched on the key meetings that sue was talking

about, the meeting between trump and ellen weissleberg, and cohen where they walked down the hall and trump approves it. the other one being the oval office meeting in february 17 where trump and cohen summoned the repayment agreement and trump basically says to him, you are going to get your january and february checks soon. not one word about either of those meetings during the very lengthy, sometimes meandering, sometimes effective cross of michael cohen. >> i think your point about, if they had just said, look, they have met the standard, and then they put on a defense and this is the best you have? >> again, i don't know robert costello but i think is a great guy. good point. always good to talk to you. thank you. lisa, stick around for one more block because i want to ask you about the legal machinations going on, around what the jurors will be considering next week, which might be as important as any testimony we have seen, that is next. next. n with nonsteroidal anti-inflammatory medicine

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once both sides rested in the trial, both sides were dismissed and a crucial hearing started about jury instructions. a set of guidelines the judge reads to the jurors on what the threshold is for them to find trump guilty or not. now, on the matter of

sufficient business records, invoices to michael cohen, for a fictitious retainer agreement , and then checks cuts to pay those invoices, many with trump's signature on them and benefits a, you know, retainer for legal fees. and they falsely falsely record this payment of legal expenses, they are there in black and white. that happened and we know that. cohen testified there were false and there is a lot of evidence to back them up. these were not legal payments., so you just did that. right? misdemeanor falsification of business records. now, the trickier part will be the intent and what it was. because remember, donald trump is facing felony counts, since that falsification, which is there in black and white and i don't think is particularly well contested, was according to prosecutors in furtherance of another crime, violating campaign finance law. so, what will a jury be told about how they should establish

trump's intent, there, the furtherance of the crime part? what standard of proof will they have to apply? how will they be told to apply the law to testimony and evidence presented to them on that score? i don't think it's an overstatement to say this case could be won or lost on those instructions. back with me, legal correspondent lisa rubin, he has been on both sides of this situation, we start with the lisa in the hearing today, do you agree with that characterization about the weight of the instructions? >> i agree with the characterization of the weight, i disagree with you about what will be easy and difficult about this. in order to find that trump is guilty of felony false vacation of business records, the jurors have to find that either he made the false business records himself or that he caused somebody else to make them. the meaning of the word cause is something on which this case

hinges and that is because the prosecutors want a definition of cause that is really expensive. it is basically like, if based on your conduct you could reasonably foresee that business records would be falsified, you have caused there falsification. that is the instruction they wanted today and that is the instruction that juan marshan in today's hearing indicated he is not likely to give. the question then is, what is cause going to mean and how will it be defined for these jurors? if cause means literally, i directed charles, here is how you are going to set up this general business ledger, that is not evidence that is in this case right now. >> that doesn't allow anything. >> because of how he conducts business, correct. i think that while these business records were false, to establish that trump falsified them but >> you think cause is a big thing? >> huge. >> it's huge because of the testimony that we have not heard in terms of someone exquisitely saying that donald trump instructed me, or directed me to do these things,

which is why michael cohen's testimony ultimately was so important. getting back to jury instructions, chris, this is where the prosecution should be very nervous. i say that, because the more complicated these jury instructions are, the more difficult it is to get 12 jurors to unanimously convict, beyond a reasonable doubt. and that is what they have to do. i think if you are the defense, you are concerned about them, but for the prosecution, this is really where your case falls apart if it does. >> i have been trying to think about -- how do i understand this, if i am a juror. i understand in my mind there is a flowchart here. so the first is, were there falsified business records. right? you could say actually cohen was giving legal services. this is all in the outcome. okay, if there are falsified business records, did donald trump cause them, however cause is defined to be falsified. >> yes. >> and again, i think yes, but i understand that might not be a slamdunk based on what the

definition of cause is. and then the third is, did he do it in furtherance of another crime? >> is broader than that. >> it is. there could be a number of different reasons as to why with respect to intent, and that is where the persecution has a leg up. where i think there may be some issues around the challenge, let me back up. the judge is going to, more likely than not in a case like this, create what is called a special verdict form which will do exactly what you just talked about. will take the step by step, and say if this, then this. keep going. if no, we are done. each element of the crime in terms of what needs to be established to prove it, after explain the standards, that is going to be a check for them to all 12 agree on. >> they will essentially have a physical embodiment, a form of this flowchart. >> if they have a special

verdict form. >> yes, which i suspect they will, because this is not as straightforward as other cases. >> then we get back to the third element, yes there is falsified business records, jesse called them. >> the third element is, did he do so with an intent to defraud, including an intent to commit or conceal another crime ? today, one of the arguments the parties had was, do they have to separately prove there is both an intent to defraud someone and an intent to commit or conceal another crime? the part and parcel really of this same thing. >> that's pretty broad. >> but, you are talking about, did he have an intent to commit or conceal another crime, this is the thing that hung up mark conference, right? how specific does it have to be? at this point, it's clear that the principal theory the das office is relying on is that trump intended to conceal a conspiracy between and among him, cohen, dylan howard, and others, to promote his election in 2016, and here is the

kicker, through unlawful means. and this is where i think things got really collocated. >> hush money is not unlawful. by itself. >> well -- right. >> the payment of hush money is not unlawful. falsified business records is unlawful. >> the unlawful means of getting elected. >> basically the das office stood up and said we have four options to choose from. the payment to karen mcdougal is one form of unlawful because it's an unlawful corporate campaign contribution under federal law. >> michael cohen's payment history daniels is the second. then you would also have possible bank records, so michael cohen filled out to establish his llc. than the real thing that i want to can indicate to you is, sean said today that he is not going to assist that every juror come away with the same unlawful means. which means, i can think it is the bank records and you can think it is amis payment to mcdougal and that is okay. they don't have to be unlawful means that trump himself employs, it is that he has

intent to conceal this conspiracy to promote his election through unlawful means, and all that matters is that someone in the conspiracy take that overstepped. >> that is the part of the prosecution has to benefit, because they don't have to convince the jury that they were essentially in cahoots for the same thing. >> or even a specific discrete crime was committed? >> correct. >> they don't even have to prove it was committed. that's correct. it doesn't have to be completed. that is not a part of what the burden of proof for the prosecution is. >> this is why, back and forth about whether they will at this expert witness in who is a campaign-finance expert, maybe standing there was that they wanted to bring them into basic lycie, the prosecution's theory of the case is bunk and the judge says no, that's a matter of law and fact and i'm not going to let you come in and say that the legal theory -- because if that is true, then the judge should never allow the case to go forward. so he was out, but that fighting about what you have to prove is annulling the jury instructions. >> yes.

actually, not even. the judge has determined there are multiple routes. to get there. correct. >> we will see what that cause is we are looking for in the jury instructions, that is that cause element and how they describe it on the special jury verdict firm thank you very much. still ahead, things keep getting worse, somehow, for rudy giuliani. a wild scene from his latest indictment in an arizona courtroom, next. courtroom, next.

it was a wild scene in arizona, today, where 11 of the 18 people charged in the fake electors scheme, trying to overturn the 20/20 election pleaded not guilty this morning. among the people charged was this one, christina bob, seen here in her mug shot. she is a former lawyer for donald trump, and now currently serves, get this, as the republican national committee's sr. counsel for election integrity. >> could use the training? >> christina bob. >> miss bob, you are before the court on counts one through nine, as to each allegation, you have the right to remain silent and also to be revisited by counsel. your appearing with your lawyer this morning. the court will return a not guilty plea on your behalf. you will need to be present for all your scheduled hearings. if you fail to appear to court without cause a warrant could be issued for your arrest.

>> former trump lawyer rudy giuliani was also arranged today via telephone. >> is that me? >> yes it is you, mr. giuliani. i'm going to get the times that the not guilty arraignment. could you please state your name? >> rudolph giuliani. >> the prosecutors explain the lengths to which they had to go to serve giuliani with his summons to appear, today. >> my agent spent about 4 to 5 hours outside his manhattan condo. the doorman stopped them on arrival, and told them, two days earlier, but a note came down that no one was allowed up to mr. giuliani's office. on may 2nd we sent certified mail to mr. giuliani's manhattan address. that was with the summons. it has still not been returned. he posted on friday night, as you can see it is a picture from his 80th birthday party in palm beach, florida. we had two agents in florida at the time, who were outside the

party waiting to see if he would leave to serve him a summons. about an hour after that post, the agents saw him leaving and then served him a summons. >> admitted rudy's protestations, the judge ruled he must now appear in person in 30 days and post a $10,000 bond. >> i consider this a complete embarrassment to the american legal system. i show up for every court appearance. there must've been 20 or 30. there is no history of my being -- >> i think i understand your position. thank you, sir. >> it is outrageous. it is completely political case. it comes very late. >> sir, sir -- mr. giuliani, i don't want to meet you but i need to move on. i will adopt release conditions

as contested by the state, but with respect to the bond, i will secure the appearance bond was essay cash bond. >> you said a bond? >> secured appearance bond. >> demi hey come is the investigative reporter for the "new york times" and was inside that courtroom today. denny, describe what it was like inside that courtroom today. >> it was previously uneventful. the previous 10 defendants were like a normal arraignment, they might have spent five owen five minutes on each defendant. not guilty, then the court would tell them when the next hearings were. so, it was proceeding as normal, and then it got to giuliani, it really got much more interesting. the prosecutors haven't asked for a bond for any of the other defendants, and they haven't asked any other defendant to show up in person. these arraignments, today, several were virtual, so it was

quite unusual. there were clearly aggrieved by giuliani's behavior over the last several weeks, and they felt like he was taunting the arizona justice system. >> yeah. the prosecutor giving that lengthy disposition on the efforts they went through to serve him, the summons to appear, my understanding, was connected to them asking for a bond. he tweeted at one point from that party, kind of a catch me if you can tweet, i'm not hiding from anyone and it was only after that, that he was actually served. i'm guessing the prosecution was making the point that we cannot trust them to comply based on his behavior with respect to this summons. >> that's right. they put a picture of that tweet, they displayed that in court. so, they clearly wanted to make a point about what he had done. he obviously pushed back, he said, the reason that you

couldn't get to me in my apartment is because i haven't gotten a number of death threats. but then they pointed out that they had discovered that right after their indictment became public, the doorman at giuliani's building was told not to let anyone up. so that is how that works. >> these are some of the individuals who have been arraigned. john eastman, of course, had served as a trump attorney, pellegrino, ward, kelly ward is notable because he used to run the arizona gop. michael ward, tyler bauer, sarah morehead and of course, christina bob. christina bob was there in person today. am i right? >> that's correct. >> she is now special counsel for election integrity of the republican national committee. she is charged with essentially election fraud, here, or attempted, defrauding of the

voters of arizona from the rightful the accounting. what are the next steps in this case? we have heard about mandatory court appearances coming soon, including for giuliani. >> there are still a number of arraignments to come next month. mark meadows has not been arraigned yet but he will get arraigned. boris epstein, still one of trump's top lawyers, he is going to be arraigned. i think the middle of next month. jenna ellis, i believe, is still do. so, there are still a number of people who have to come up, and a number of hearings that will play out. the trial date is tentatively set for mid october, but i don't think there is any way that we are going to see a trial in mid-october. >> yeah. mid-october seems optimistic. based on how we have seen all the scout so far. thank you so much. appreciate it. >> thank you.

still to come, new reporting of the culture wars of the supreme court justice and calls for samuel alito to recuse himself increase, next. .

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you to speak out. >> that was supreme court justice samuel alito speaking earlier this month to graduates of the franciscan university of steubenville, ohio. one of the spiritual centers of the antiabortion movement. the school consistently ranks one of the most conservative colleges in america. the website stresses time and again how central the school has been in the long movement decriminalize abortion in america since roe v wade. little did we know, then, that alito's family had already lived out his advice in their own northern virginia community. right after the january 6th insurrection, as the supreme court was considering an election case, by flying the united states flag upside down on the front lawn of their house, a perversely anti- patriotic symbol adopted by donald trump stop the steel supporters to protest joe biden's victory. and open not to the insurrectionist spec that is shocking behavior of a sitting supreme court justice. it is all the more shocking, because alito didn't dispute

with the inverted flag stood for. in an email statement to the "new york times", he just said it was his wife's idea to fly it, to troll the libs in their neighborhood over their own yard signs. it almost sounds like alito is saying he found himself in a social setting being pressured to endorse ideas he didn't believe, but then the news broke about some stock trades alito made last summer. last august there was that hokey right-wing effort to boycott bud light because the company had provided a single trans influencer with one can of beer. it is hard to remember just what a crazy cause cilhbre the boycott became, but let a heavily armed kid rock remind you. >> now, while that boycott was raging, last august, according to a search of financial

records by legal reporter chris gardner, justice alito sold a chunk of stock in anheuser- busch and he bought shares of cores on the same day. kid rock was outshooting up bud light cases and sam alito was selling his anheuser-busch stock. now, you can say, it may just be a coincidence, if it weren't for everything else we know about samuel alito. the guy who just got an honorary degree in the stemming standing ovation from conservative christian college for authoring the dobbs decision which undid roe v wade. a decision that curiously got leaked ahead of time, the full text of it just like the hobby lobby decision, apparently, that he authored, but gave businesses the right to impose their religious beliefs on their employees. the more you examine his comments, not just arguments, but public speeches of conservative schools and organizations like the federalist society, the more he

looks and sounds like what i think he is. a far right maga loving extremist. nothing works possibly confirms that than the fact that alito and his wife apparently flew the symbol of an antidemocratic extremist movement over their own home. the "new york times" reporter who broke that truly jaw- dropping story, next. next. edition smart bed. plus, free home delivery when you add any base. shop now at sleepnumber.com (♪♪) (♪♪) try dietary supplements from voltaren, for healthy joints.

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this story broke in the "new york times" while i was away last week. one of those stories that

showed up on my phone and literally stopped me in my tracks. i stopped on the sidewalk, i read the whole thing, and i wanted to run around to every person i saw, friends and strangers and say, did you see this? it was that shocking. one of our supreme court justices, samuel alito, had an upside down american flag flying over his house just over a week after january 6th. and subsequently amazing thing is that after alito gave a brief statement to the times confirming the report, he ran to a fox news host, saying his neighbor put up a derogatory sign about donald trump. his wife spoke to him about it and the colorization was not well received. his wife said to make some sort of statement by hanging the american flag upside down outside their home. okay. i know that we have to take alito's word for it about his neighbors sign but let's say that were true. it changes nothing about what a shocking story this is. investigators reporter geordie can jodi kantor with the "new york times" joins me now.

first, let's start with the semiotics of that flag. because part of what is striking to me is that it is a pretty deep cut. it was a symbol that was known in a fairly small part of american political life, but its meaning was clear to those people that did no. >> so, upside down american flags have been used to protest many things, and many sides at many different times in the last few decades. but during this point in the fall of 2020, and early 2021, it crystallized as one of the symbols of the stop the steel campaign. we went online, message boards, and found exhortations for trump supporters to turn their american flags upside down in protest of president biden being awarded the presidency. in fact, during the days when this flag appeared outside the alito home, you can see there are these instructions, the inauguration is coming, the flag flew, we know, for

example, on january 17th at the alito residence. there are exhortations at this time, this is the way to protest president biden's inauguration. >> i think the origins of it, it is a distress symbol, right, in the military? the ship is about to go under. a sign of absolute urgent distress. you write this story and i have been a reporter and broken the story before where you think, did we get this right? and you are on tenterhooks a little bit, and then you have everything confirmed. they write back like yep, that happened. >> the response really was fascinating, because justice alito did not deny that this happened. he did not deny the meaning of the flag, and he did not deny that he had knowledge of it happening. it was up for several days. >> now, there has been -- they have gone to a fox news host to give this further context about a tiff with antitrust neighbors, which is interesting

just because it shows that everyone understands who is on which side in this great political conflict, which is of course the point at issue. do you know -- to people in the neighborhood, contemporaneously noticed the flag up? were they shocked by it? what did they say? >> it is really interesting. though not everybody noticed it, those who did had a kind of incredulous reaction, because everybody knows that the rules for federal judges are that you cannot make political displays. these are washington people, you know, these are rules that really every lawyer knows. the commitment to not only being impartial, but seeming impartial, and not giving anybody the wrong impression are at the heart of the rules for judges. >> just to make a clear point, you happen to be married to a fantastic writer and reporter, but if you were married to an

official, you would say to your spouse, we can do that. i'm saying, for a "new york times" reporter but forget the judiciary. i'm saying for myself, i wouldn't do it. >> what is more interesting than it me or my husband, is actually the memos that the supreme court sent out internally to its own employees. they are very clear. they reiterate these instructions during election periods. they say, you cannot participate in any political activities, and they specifically cite displays and signs, and so i asked the supreme court, do these rules, which apply to everybody who works there also apply to the justices? and they wouldn't answer. >> the answer in a technical

sense is no, the justices can do whatever they want and are bound by nothing, right? i mean in the literal sense. >> so, there is a new code of ethics. there is the code of ethics for federal judges that they say they adhered to in the past, it is a clear understanding that judges are not supposed to tip their hands about their political beliefs. of course they have political beliefs, but also, what i want to say is especially relevant, here, is that the court at this time was still deciding one lingering -- it was still considering one lingering 20/20 election case. but also, you know, in the next few weeks, the court is going to issue these two climactic decisions about january 6th. these are essentially going to determine credibility for that day, for former president trump, for other rioters. the court has had a problem from the beginning with these cases, essentially, how can

they get a wide swath of americans to trust the outcome, given how politicized it all feels. that existed before hand, now, what legal experts are telling me is that this upside down flag does not make it any easier. it doesn't help the court credibility at this essential moment. >> i think that is an understatement. you are being very careful, i want to put a finer point on it. you can imagine a world in which you put a yard sign up saying no on this property tax. you know, in virginia. this is a flag whose meaning at the time was understood as support for donald trump's false claim that the election had been stolen from him after the violent insurrection on january the sixth. not before. this is not december. this is not just a political statement, this is a very specific and loaded political statement that was like, the election was rigged and donald trump didn't lose.

that is the meaning that was understood contemporaneously by the people who were flying it on those message boards. >> correct. basically, the question here is that, you know, it is about whether these cases are being fairly decided, right now, and it is about the future trust in the judiciary. >> we should note, there are about 50 members of the united states house of representatives. democrats have called for recusal now from those two january 6 related cases. hank johnson said we are compelled to request that you recuse yourself from any dissipation in the cases of trump the united states and fisher of the united states, which is about obstructing official proceeding and its meaning. any other cases that may arise from the events surrounding generation x. we should also note when you talk about other justices, clarence thomas's wife, ginny thomas, was subpoenaed and gave testimony and tested testimony texted mike meadows about the election.

jodi kantor, thank you very much. that is all in on this tuesday night. alex wagner starts right now. >> some other stuff lending itself to an era of tension and politicization of the high court. >> yes. >> amazing reporting. by the way, if any of the neighbors want to come speak to me about what they saw open invitation. n invitation. okay, do you remember the 1980s mobster comedy wise guys >> a jacket for me, mr. costello, thanks >> a gangster's life is a brutal calling i will one day. >> it's part of a grand design >> a super error into a date with