good to be with you. it is 10:00 a.m. in new york.

i'm katy tur in for ana cabrera. we are moments away from a, quote, rule for the ages. the supreme court has four decisions left to issue, including the decision on whether a president enjoys immunity for what they do while in office. a decision so big and so significant, justice neil gorsuch said during arguments they would be, quote, writing a rule for the ages, as i managed up top. what will the justices decide and what will it mean for the criminal case in overturning the 2020 election results. i'm joined by msnbc legal xant lisa rubin, former fbi general counsel andrew weissmann, former u.s. attorney and senior u.s. attorney chuck rosenberg. also with us, forming acting solicitor general neal katyal. first let's go to nbc's yamiche alcindor outside the supreme court.

yamiche, lay it all out for us. >> reporter: this is sure to be a consequential day at the supreme court where judges are set to decide on the trump immunity case. all of this is connected to his efforts to overturn the 2020 election with special counsel jack smith saying he broke the law when he was trying to get people to do things like, get fake electors and trying to get the justice department to take actions that would allow him to hold on to power in the 2020 election. there are big questions before the supreme court. there are four cases along with this one. it could change the presidency as we know it here in america given the powers that this presidency might have after this ruling. any minute now we could get that decision. we'll be standing by to figureout what's going on here and what the decision is. the devil might be in the details here. this could be a complicated decision, a split decision here. we'll make sure we get it right here. it is a very big day here. history will be made no matter what the justices decide, katy.

>> just to bring you into what's going on behind the scenes. we usually get these decisions in ten-minute increments. we've gotten one that is not the immunity case. we'll be watching for about 10:10 to see if we get another. there are four cases, so it could go to 10:40. they're also issued in the order of youngest to oldest -- not youngest to oldest. less senior to more senior serving on the court. the newer justice, if they're writing the majority opinion, will issue the first decisions. if it's a more senior justice, lit come in later. we could potentially be getting this immunity case at 10:10, 10:20, 10:30 or potentially 10:40. the times can get moved as we go. once we get the decision, yamiche just mentioned it might take some time to go through it. so we will have a team here reading through it to find out exactly what it says, exactly

what it means. here is our team -- for the immunity case against donald trump and for donald trump's case in d.c. this is the case about whether he tried to overturn the 2020 election, whether he should be held criminally liable for it. so, andrew weissmann, there are three options in front of us according to most people who have been looking at this. one is that he has no immunity. one is that he has full immunity and three is that it's going to be a mixed bag. >> yes. so you want me to predict. okay. i think the first thing i would say is the decision is the fact there's been no decision until today. the reason i say that is i think there's no way that there is going to be a trial before the general election. and that, frankly, is the big story. >> but explain why. >> because there has been a stay in effect at the district court

level. so no pretrial proceedings have gone anywhere since december. the judge has said, the district judge, that from december to the initial trial date of march was going to be used to allow donald trump to have pretrial preparation, discovery, argue motions. that's about 80 days, a little bit more. if you add 80 days to where we are today, assuming that there's a green light today, that brings you perilously close to the election. and whether judge chutkan is going have a trial just before the election that runs over it, that seems quite kwbl. but there also won't be time for a verdict under that schedule. the thing i'm looking for is i think there will be a mixed bag. i think there will be some area where they say there is immunity, and that will be a very limited area. i think that will be the

majority. if the court says, you know what, we're leaving for the district court to decide what's official and immune and what's official but not immune, and that is sort of the one possible silver lining in terms of the general public getting more evidence, getting to hear from, for instance, mike pence. >> so if there's an evidentiary hearing going through all that jacket smith has, that's not a trial. it's not going to lead to a guilty/not guilty outcome. but it will lay out for the public what jack smith believes donald trump did. >> it will. katy, i should also note, there was a concession by formerp president trump's attorney that there were private acts for which there is no immunity. so you can expect those to go forward, but also, to andrew's point, potentially will put on hold while we have this mini trial or evidentiary hearing about which of these allegations are sufficiently official versus

private. >> what did mr. sawyer concede was not official? >> he had a long exchange with justice barrett. he said i want you to agree or disagree these as private. trump turned to a private attorney spreading -- private. sawyer conceded yes. then she said the second scenario, he conspired with another private attorney, john eastman, who caused the filing in court of a verification signed by trump that contained false allegations to support a challenge. private. he said that also sounds private. and the third was, three ply vac actors, two attorneys including those mentioned above and a political consultant helped to implement a plan to submit fraudulent slate of electors to obstruct the certification proceeding and your client

directed that effort. it's not part of his argument as to what would qualify for immunity. that's an enormous concession at oral argument that will be hopefully resolved by today's ruling. >> there was an interesting debate in the oral arguments, neil, that i would love to get your thoughts on. you can't apply general criminal law, general criminal code to the presidency. why not? >> well, the claim is that the president is so unique that every time congress passes a general criminal law, they have to say, by the way, it applies to the president. so we have a prohibition against homicide. you're supposed to say homicide is illegal and lands you in jail and, by the way, this applies to the president. that's a crazy way of thinking about our constitutional system. i don't suspect that that should get tracked by votes. it's not the way things are done. normally no person is above the law and the law is written for

everyone. obviously if the law is an exception for the president, that's one thing. there's no kind of necessary clear statement that's required. katy, i also just want to bring our viewers a little bit into the scenes of what's happening at the court right now, because i've been there for mows of these handdowns sitting in the office. what happens is a justice reads an opinion. as you say, it's the least senior justice that will start the opinion reading. here it was justice barrett reading. that's going on right now. if the decenters, the so-called three liberal justices. if they disagree so strongly, they'll start reading their opinion. that can take you to 10:10, 10:15, maybe even 10:20. that ten-minute increment rule that you referred doesn't exist anymore. that was only during covid when there was no one in the audience. now there is actually an audience in the court as we

report to our our viewers. it could take longer. we could get -- the next decision which is presumably the social media cases, should start to come down in the next few minutes. there may be some dissents that are read from the bench, and that would take us to maybe a 10:50 start time on the i'm municipality cases that we're waiting for. >> it is a sense among the very astute legal minds in this room that justice roberts, chief justice roberts would be the one to write this decision. neil gorsuch called it a rule for the ages, that's what they were writing during oral arguments. is that what you're feeling as well? >> absolutely. i think this chief justice cares so much about the institutional credibility of the court. in the big cases he feels like generally he's the one who shoumentd write. he didn't write dobbs, but because he didn't take the

extreme position that the other justices, lead by alito, did. he wasn't effectively the true majority opinion writer. here in a case like this, i suspect he's going to have outside influence. i suspect much of the last months have been the chief trying to persuade each of the eight justices to sign one unanimous opinion with one line of reasoning. that's undoubtedly his goal. unfortunately it's been his goal since 2005 and he hasn't been able to muster it too much in recent years that justice alito and thomas in particular have moved the court so far to the right that that kind of unanimity has been very difficult for him to achieve indeed, if anything, we've seen the court breaking 6-3 in big controversial cases like the chevron decision last week which is going to have a huge outsized impact on you and me and everyone watching this show because it will usher in massive deregulation of the economy in

areas like the environment, consumer protection and the like. >> there's also questions of whether osha can operate. whether workplace safety will be able to operate as it has. so justice jackson is now reading her dissent. that's going to push us further back. justice barrett before she read her majority opinion -- joked that this was not the case that people were coming the see today. no, it is not. i find it so interesting that you, as a member of the public, anyone out there, can go to the supreme court and can hear this for yourself. you can hear org arguments during nir individual case and you can be there for these days we're watching right now, as long as you get there early enough to get a seat. one of the big questions i still have about this, chuck, is why was this case even agreed to be heard in the first place. and justice sotomayor -- kagan, excuse me -- said basically during oral arguments.

wasn't the whole point that the president was not a monarch and the president was not supposed to be above the law. wasn't the whole point of the revolution to break away from that system? >> i have a simple answer. i hope it's not simplistic, katy. but that's what the supreme court does. they weigh in on big legal questions. this is a big legal question. it has to do with whether or not a president, any president, not just mr. trump, is immune from criminal prosecution. so while i think the issue was well litigated, well briefed below, itches not at all surprised that the supreme court took this case. it strikes me as exactly the type of case they would take. >> what about the idea -- this country has operated for nearing 250 years without a rule that says a president is immune. why does it need a rule on paper now saying the president is immune for this act and that act? what has changed? >> again, a simple answer but i

hope not a simplistic one. what has changed is that the president has been indicted. any president who has been indicted, and so far we've had 45 men serve 46 presidency, i imagine any of them who have been indicted would have claimed they were immune from prosecution. what has changed? trump was indicted, he raised the issue, litigated the issue, he has last so far in district court and in the xourt of appeals. and my assumes, katy, is he will mostly lose again, except, back to andrew's point, if it was delay that mr. trump wanted, he's won that. >> you argue the supreme court has already combochd the trump immunity case. this is your op-ed from melissa murray from april 24th, 2024. it is now july 1st and we still are awaiting this decision. >> even if you take the view -- chuck's reasonable view that the supreme court would want to put its stamp on this issue, i'm not sure everyone would agree with

that. let's take that as a given. this was firsted raise to them by jack smith in december. there's no reason that they couldn't have done one of two things. one, they could have decided it quickly. they certainly have precedent for doing things really quickly. just take the nixon case. >> or take colorado. they did that quickly as well. >> exactly. that's this court. that's this court, exactly right. one, they could have done it a lot faster. remember, there's a pending criminal case. >> and also a pending election. >> exactly. let's say they decide, you know what, we're not here about the election but there's a public right to a speedy trial, not just the defendant's right, but a public right. so in my experience when i've little gaited, when there's a pending criminal matter, lits go quickly. >> don't they have the right to see all the evidence and see the argument made by the special

counsel before the election in a timely way to help them decide whether they want this man to run the country again. absolutely. i think there's a slight definitional thing which is i think there is that right that we all have, but in terms of a criminal case, i think the court would view it more in terms of its public right to the trial, but it gets to the same point. the other thing, by the way, that the court could have done, they could have said, we're going to let the pretrial proceedings go forward. we can't have a trial yet. you know the 81-day problem we talked about -- >> was that their choice or judge chutkan saying she was going to put it on hold. >> she had to follow precedent. the supreme court could have said, you know what, given we're pretty confident that we're going to allow some form of trial to go forward and should have five votes for it, they could say, go ahead and do the pretrial proceedings. that's a long way of saying they had many things that they could have done. so it's very hard to look at

this as anything but really weighing in, at least de facto on immunity for this former president. >> neal, i'd love to get you to jump in on this. >> i think andrew is basically right, that the court -- sure, they could have taken the case. they should have taken it in december, or if they're going to take it in february as they did here, they could have let the pretrial proceedings go on, and judge chutkan certainly signaled i think some willingness to have that happen while the supreme court was weighing the absolute immunity case. my very first case was bush versus gore which was decided in a matter of days, from the time of agreeing to hear the case, briefing, oral argument, decision. in united states versus nixon back in 1974 was probably the best analog. similar questions of presidential wrongdoing. the court decided that in a matter of weeks.

here we're talking about a matter of month and at a time when the court knows full well there's aptal election about to happen and that the american people don't know all the evidence that jack smith has mustered. jack smith has had subpoena power and has access to evidence that the american public has never seen. that's what this prosecution would have revealed, and now there's a deep question as to whether that prosecution will ever take place. if, as i suspect, and i think lisa is absolutely right the court, because of trump's concessions, is going to let some sort of trial go forward, if trump loses that election, that trial is going to go forward and trump is going to face justice. but, if trump wins the election, he has the power to just nullify the prosecution right away at the get-go, and that will prevent the american public from ever learning all the evidence that jack smith has about what trump did on january 6th and in the days before and after. >> all right, lisa.

>> i want to dovetail back to something that andrew said about delay being the win here. because one of the options that jack smith presented the court with in december, let me leapfrog the d.c. circuit court. you hear this immediately. that's what andrew was referring to. >> he knew it was coming. >> he knew it was coming. the court did that with the idaho abortion case it decided last week. it allowed that case to leapfrog the ninth circuit court of ap peoples before saying, hey, we made a mistake, we shouldn't have allowed that. the second thing, katy, i want to add to this discussion, the delay from december 13th when chutkan stayed the case to today, has been two times the length of what the trial would have been according to the notice sent out to potential jurors saying are you available for jury service, this case will take roughly three months. now it's been six-plus months. their decision to not leapfrog

the case when jack smith asked for it has serious consequences here. >> liam read from judge jackson. she said if the potential for criminal liability is taken off the table, wouldn't there be a significant risk that future presidents would be emboldened to commit crimes with abandon while they're in office? it's right now the fact we're having this debate because the office of legal counsel has said the president might be prosecuted. presidents from the beginning of time have understood that's a possibility. that might be what has kept this office from turning into the kind of crime center i'm envisioning. once we say no criminal liability, mr. president, you can do whatever you want, i'm worried we would have a worse problem than the problem of the president feeling constrained to follow the law while he's in office. this was in response to john sawyer, trump's lawyer, feeling they can do the job of the presidency without the threat of

legal liability hanging over their head. she turned that on its face. i wonder, if the supreme court does say you are immune from certain official act, doesn't that also send kind of a chilling vibe to presidents knowing that they can doimpunit? >> first of all, i think it's a good question for an oral argument. this sounds a little law schoolish to me. we haven't had presidents committing crimes with abandon since the founding of this nation. we've had two presidents, as far as i know, who could have been on the hook. nixon and trump. i'm not sure, katy, this is a runaway train sort of problem. that said, there's a really interesting i think case that demonstrates why it's valuable to have some sort of official act immunity. in 2011 when barack obama was president, he ordered that a

u.s.-born person, anwar awlaki, born in new mexico, living in yemen who pledged loyalty to al qaeda be the target of a drone strike because of his terrorist ties. obama ordered it. awlaki was killed. by the way, i think it was an absolutely appropriate thing for president obama to do based on the input from his intelligence community, military community and justice department. no quarrel with it. there is a federal criminal statute that makes it a federal crime for a u.s. person, v, let's say obama, to kill another u.s. person, let's say awlaki in some third country, yemen. should mr. obama be prosecuted for that? absolutely not. not under any rational -- >> but their argument is what if there's irrational set of prosecutions to come in this new era we're living in. >> we've got the two social

media decisions which means we're now in i'm community territory and could come at any moment. go ahead, chuck. >> under an irrational successor hypothetical, katy, someone comes in and thinks mr. obama should be prosecuted for ordering the murder -- the killing of anwar awlaki, under the crazy successor io, it would be absolutely appropriate for presidents to have official act immunity. did mr. obama act in his official capacity, within the confines of his constitutional duties with his commander-in-chief hat on? absolutely. so it makes sense to carve out some immunity. the hard part, the tricky part is what is an official act and what is not an official act and how are we going to decide it. >> all right. again, we're in the immunity zone. we are waiting for this decision. we are going to talk about the politics that will come along with this as well.

nbc news white house correspondent mike memoli joins us along with nbc news correspondent vaughn hillyard, and peter baker, chief white house current for "the new york times" and also an msnbc contributor. vaughn, tell us how the trump team is watching this. >> just this morning on a social media post, donald trump called for strong immunity to come from the supreme court decision which we should note is different than absolute immunity which he called for for months. of course, that's because his own attorney in front of the supreme court conceded on multiple fronts that some of the actions that he took around the events of the 2020 election were, in fact, private acts. and this is where, when you're talking about the politics of this, we're four months out from the general election. and for the biden campaign, they have called out concerns about what a second term in terms of the use of the executive pourps by donald trump could potentially look like. this is somebody who, within the

last two years in donald trump called for the suspension of the constitution, to terminate all the rules, regulations and article, even those found in the constitution. he's talked about being dictaor for a day. during those supreme court oral arguments his lawyer was directly asked the questions about whether official acts would include an attempted coup, whether it would include the selling of nuclear codes of the united states. his attorney said that potentially those could be found to be official acts. so this suddenly, depending on where the supreme court takes this, could have serious implications on the use of the executive branch, particularly, of course, donald trump is the first one to face criminal charges coming out of the white house. but for donald trump, there is an acknowledgment of not only how he could potentially use the executive branch, but also the impact it could have on any attempt to see charges against

the current president, joe biden. just this morning in an interview with a right wing program, i want to read to you when he was asked about the impact of this decision, this is what he said, katy. quote, you know the immunity statement that's coming out today. that is going to be very interesting to see what happens. i think it has a bigger impact on joe biden than it has on me, actually. of course, donald trump has repeatedly over the last year suggested he could seek retribution and seek to investigate joe biden for his unspecific, unalleged crimes if he were to get back into the white house, donald trump, in 2025. >> prosecutors will tell you you need evidence, you need a case. you've got to get an indictment first and you've got to be able to try that case. so far we've seen no evidence produced by republicans based on joe biden, his criminal conduct that they called -- we see no evidence of that. there's been a house select committee -- house committee trying to find that now for a few years. let's bring in mike memoli. mem, how is the white house, how

is the biden campaign watching this? >> let's start with what the decision itself can mean. as we look at what the biden campaign has laid out, what is at stake for voters, the country, the contrast between president biden and donald trump. high on that list is this idea that whatever checks, whatever guardrails there are on presidential power could be potentially changed in a significant way at this moment. this is a president, as vaughn lays out, a former president who has said, being a dictator on day one. somebody who would potentially use the office more for driving a personal agenda than an agenda for the american people. that, as they look at the major supreme court decisions they were preparing for here at the end of the term, this particular one was very high on that list. i think we also have to acknowledge reality as well, too, in that the biden campaign wants to talk anything other than what happened on thursday night today. this is a significant development. this is a significant potential

moment in our country's history as we lay out the potential guardrails for president immunity. this will give an opportunity to pivot away from the discussion happening publicly and privately throughout the weekend about whether president biden should remain on the ticket for the democratic party and focus back on the substance. this is going to be something that takes time, katy, a decision the president has to make about moving forward. so the more time that they have to talk about other important issues is a win for the biden team. >> i wonder, peter, if this decision comes out and there's any ambiguity on whether the president has immunity, if there are stakes raised by that decision, whether that really puts a conversation is about president biden to the side, or does it only heighten the concern about biden? >> well, look, obviously, the concerns about president biden are pretty strong right now, specifically within his own party. i think mike is right in the sense that they would rather be talking about issues of constitutional import and, you know, donald trump's alleged criminal behavior than the

president's capacity and performance last week. gives him, in effect, a few hours of political immunity in a way. it doesn't overall change or solve the problem. but it does kind of remind us of the stakes, the stakes involved here. this is one of the reasons why democrats are upset. they're not upset with joe biden in large form because they like joe biden for the most part. they're ufrp set with the idea that joe biden may not be able to beat donald trump. donald trump is the real figure hovering above this decision -- >> peter, i'm going to interrupt you. we just got an immunity. we're reading through it. top lines? anyone give me top lines on this decision? >> go ahead. >> i've got a whole table of people who want to read through it before we give you any big breaking headlines. chuck, talks to me about the complexity here. go broad lines, as lisa and andrew read through this.

>> i will bide them some time. the complexities. you laid it out nicely at the beginning, katy, the various scenarios. full immunity, no immunity or something in between where a president gets immunity for official acts. >> top top line takeaway, not fully immune. sorry for interrupting. >> so that point a president is not fully immune. the hard part, the complexity is what is an official act and who gets to decide it. that will be sort of the devil in the details. >> so absolute immunity for official acts, not absolute immunity for non-official acts. you know we're getting into breaking news because the background behind us turned red. >> this is 6-3, the three liberal justices are in dissent, sotomayor and kagan and jackson

joined. jackson filed a dissenting opinion. it's not an absolute win for donald trump. >> so it's conservatives versus liberals. >> yes. there's a line in here about it is true that personal acts are not immune. official acts can be immune. there's a presumption -- >> presumes of immunity. >> he's entitled to at least presumptive immunity from prosecution for his official acts. >> there's some wiggle room. >> there's wiggle room, but you can understand why there's dissent. the idea of presumption is one where -- that has never existed. it's clear that's not in the constitution. >> it's what jackson was arguing. if you give them a presumption of immunity, it allows them to maybe go farther than they would knowing that the law does hangover their head just like everybody else in this country. >> the thing i have to still read is how do you reput that presumption. the stronger the presumption, the more it's actual immunity.

>> neal, i want to bring you in as well. >> as i'm preeding it, and obviously it's very complicated. it's a 6-3 decision that does side with president trump on a variety of things. so, for example, much of the indictment that jack smith has is about trump pressuring the justice department in many official ways. the court says that was part of his official duties as president, and he is immune for that. another part of the indictment is about trump and what he did with the vice president with respect to the false certification of electors and stopping the january 6th certification. with that the court says, the majority says that's a difficult issue. that's remand it back, meaning give it back to the district court to decide whether or not the presumes of immunity has

been over come by what jack smith has been able to adduce about this not being an official act. there's a third bucket of allegations in the indictment which are about whether trump pressured state officials and private parties and members of the general public to engage in his scheme on january 6th, and with respect to that, the court again sends that back to the trial court for an evaluation of whether that overcomes the presumption of official immunity and whether those acts are official or not. so, again, there may be caveats because i'm reading this pretty quickly. it means that the district court is going to have the hearing that andrew has mentioned about -- an evidentiary hearing to decide some of these questions. that can take place before the election, bup it does make it virtually impossible for a trial to begin before the november election. >> but it does, given the --

trying to see the silver lining, it gives the american public to see some of the evidence that jack smith has compiled since the indictment. giving me a face. >> yes and no. this may be the most damaging part to jack smith of the whole syllabus. one of the parts of the holding today is in analyzing whether or not the conduct alleged in the indictment is official and therefore immune from prosecution or personal, the district court has to exclude testimony or private records of the president or his advisers that probe his -- >> state of mind? >> no, no, without official conduct. in other words, anything that they have that touches on official conduct from an evidentiary perspective also has to be excluded. that was one of the concerns of jack smith and his team in therapy reply brief. >> is it excluded from the evidentiary hearing or excluded

from evidence they can prernt at trial? as i understand it, you can use speech, protected by free speech in this country, you can use speech as evidence in a trial against somebody. you can view things protected as part of the build-up for wooip there's wrongdoing. >> maybe that's the case with respect to this mini trial we have all been discussing this morning. but at trial itself, testimony or private records of the president or his advisers that proesh official conduct that otherwise would be immune from prosecution may not be admitted as evidence at trial. >> let's bring in yamiche alcindor. you have more top lines for us as well. >> well, this is, as you said, a really historic day here. this is the supreme court setting a brand new standard for presidential immunity. they're saying here, as we've been talking about, he's entitled, the president, to absolute immunity for official acts. some of those include contact with the department of justice, contact with the vice president. we know in the case of former

president trump he's alleged and we know he did this, in some cases he was pressuring his vice president to overturn the results of the 2020 election. he was also looking to possibly install someone at the doj who would overturn or seek to overturn the results of the 2020 election. today the supreme court is saying those are official acts and likely are going to be immune. there is going to be, as you said, this mini trial to decide what are official action and not official acts. as i'm reading through this decision, there were a number of times where people said, well, what if he takes a bribery, the president, for appointing an ambassador, tries to bribe someone to kill someone who is a political opponent. it sounded like what the supreme court is saying when it comes to constitutional abilities like appointing ambassadors, those are official acts that would be immune. possibly when he's acting as a private citizen, as a candidate, those acts might not be immune. it's important to also point out here that not all acts here are

immunity. they're setting the standard, but also there's going to have to be a conversation about what action are official and what aren't. i also want to point out when you think about what former president trump was saying here, this is a big win for him essentially. he was saying that the things that he was doing to try to probe the government essentially to get him to win the 2020 election when, in fact, he had lost, that those things should be immune. it sounds as though today the supreme court is taking his side in a big way. this really does complicate -- not imperil, but complicate the special counsel's trial here, the special counsel's push to get a trial here and the push to try to get him to be criminally prosecuted for some of the acts when he tried to push for the 2020 election to be overturned. >> let me read from the majority opinion, done by chief justice roberts as predicted by this table. he says we conclude under our constitutional structure of separated powers, the nature of presidental power requires a

formal president have some immunity from criminal prosecution for official acts during his tenure in office. at least with respect to the president's exercise of his core constitutional powers, this immunity must be absolute. as for his remaining official actions, he's entitled to immunity. at the current stage of proceedings in this case, however, we need not and do not decide whether that immunity must be absolute or instead whether a presumptive immunity is sufficient. that's more context about the presumptive immunity. let's go back to what yamiche was mentioning, which are the acts that are alleged in this case, which is that donald trump used the power of his office and all that he had behind it to try to get multiple different actors across the country in multiple different capacities to take back the results of the 2020 election, the democratically done 2020 election which he

lost. he did that by pressuring his vice president. he did that by pressuring his department of justice, to the point where attorney generals resigned. he did that at state election houses with the state elector in georgia. he did that in statehouses in arizona. there are fake sets of electors. he also did that by ginning up enough doubt with the american public to cause an insurrection on the capitol. there is still a wide range of doubt among his supporters that the 2020 election was stolen because he said it was over and over again. we should also note that he brought a number of cases -- i don't have the number off the top of my head, but it's in the dozens. >> 63. >> 63 cases. didn't win a single won of them. i think 62 of them, lisa, were all dismissed out of hand. so he's never had any evidence that the election was tell len

or rigged or that there was fraud, and yet to this day he still continues to claim it, and he pushed all the levers he could -- and we saw this publicly. we've seen evidence of this in indictments and testimony, to try to get the election overturned. that doesn't seem to have bearing on this opinion. am i wrong about that? >> i think this is going to be complicated because it's a complicated decision. the first thing to recognize is there are three buckets of presidential activity that the court deals with. purely personal conduct that a president engages in. they just happen to be in office but it's personal. that would include, for instance, in the new york criminal case they talked about his signing checks for the reimbursement of the hush money payments. that's personal conduct. the court in the majority says personal conduct, there's an issue about how to define that,

but personal conduct is not immune. the other bucket is core constitutional prerogatives by the president. that would include things like being the commander-in-chief, foreign relations, things that are exclusively within the province of the president. those are absolutely immune. so then you have this middle bucket. and that is where the devil is going to be in the details where the court says at least for now, one, you have to determine whether it's personal or official, and two, right now the court has said we're going to engage in at least a presumption, but it doesn't rule out saying they might get more later. it's the second group that's going to be sent back, and tanya chutkan could have that hearing on that issue, as well as saying

what she thinks is personal and, thus, not actually covered. it's complicated. you have to keep those three buckets in mind. >> i agree with the three buckets that andrew explained. i think there's another interesting question, katy. this is about the january 6th case in washington, d.c. but are there implications here for the mar-a-lago case and the -- >> would judge cannon take what's happening here and try to use it. >> core constitutional responsibilities for the president are immune from prosecution. that strikes me as correct. purely private acts are not immune. that strikes me as correct. but what is and what is not an official act. the court has now asked judge chutkan to make that examination. by the way, that could take more than just a hearing. that could take a long time. andrew, i don't know if you agree with this or not, but it's possible that coupled also be challenged if it invokes presidential immunity.

meaning, it's not as if judge chutkan could just decide, rule and go to trial. if she makes an adverse ruling to mr. trump, when trying to figure out what is or is not official, he could appeal that again. >> lisa. >> katy, in this decision the supreme court is granting -- at least giving some guidance about not only these buckets, but specific allegations. one of the things they're holding is that trump is absolutely immune -- this is not remanded for fact-finding by judge chutkan -- with respect to discussions he had with the department of justice. you'll remember shortly before the 6th he was involved in conversations with an attorney who was then serving as i believe the then assistant attorney general for the civil division. he wanted to send a letter to georgia legislators basically telling them they needed to recertify and send up new votes or at least call back their electoral certificate. those conversations and

everything that occurred with then acting attorney general jeff rosen, he is immune in prosecution for those bucket of conduct. the next thing they say is what about trump's efforts to influence vice president mike pence? this is where the presumption comes in, that the burden is on the government to rebut that presumption but they they can see circumstances in which the presumption would fall away with respect to the efforts to influence mike pence. it's the remaining allegations that really are in that fuzzy land of judge chutkan's real authority to do additional fact-finding. with respect, and again, i'm reading from the opinion, to his interactions with persons outside the executive branch, state officials, private parties, the general public, those are allegations where judge chutkan will then have to determine whether his conduct qualifies as official or unofficial. the final category, what happened on january 6th itself.

they say, look, the president possesses extraordinary power to speak to his fellow citizens and on their behalf as part of a core presidential function. on the other hand, there may be contacts in which he's talking in another official -- unofficial capacity as the party leader or candidate for office. to the extent that's the case, judge chutkan is going to have to do an objective analysis of the content, form and context to determine whether or not former president trump can be prosecuted. they say it depends on the context of each. this necessarily fact-bound analysis is best performed initially by the district court, meaning judge chutkan. >> in the rocket document, how clearly does this start to happen? >> the hearing can happen very quickly. but there can be an appeal from the hearing, katy. that could take a long time. we've seen that already. >> trump has opened the door to delay, delay, delay, delay. >> absolutely. this is not going to happen before the election.

this, the trial is not going to happen before the election. it seems inconceivable to me. by the way, just keep in mind one thing. we were talking earlier about the crazy successor problem. if mr. biden loses and mr. trump wins, this opinion also helps mr. biden. >> he can't be prosecuted if the president -- if donald trump's folks try to take something out of context. >> not for an official act. it would make it virtually i'm possible. >> i think there's a big picture and a small picture. the small picture, what does it mean for this particular case. we knew at the outset that this sense of having this go to trial was going to be all most impossible. this makes it absolutely clear. there will not be a trial before november for the reasons that chuck said. but there will be a hearing. so there is this ability to have white house counsel, mike pence,

all sorts of witnesses and evidence that was not heard in the january 6th hearings now be heard by judge chutkan in deciding what is official versus what is not. >> that doesn't fly in the face of what lisa was saying a moment ago? >> i don't think so. there will be a hearing that judge chutkan can have. that's sort of the small picture but in some ways what people are most focused on. big picture, this is a terrible decision if you think that presidents should be treated like anyone else. this is made up by the court whole cloth. this is not in the constitution. >> let's read sonia sotomayor's dissent before we go to vaughn hillyard on reaction from biden and donald trump. she says today's decision to grant former presidents criminal immunity reshapes the institution of the presidency. it makes a mockery of the principle foundational to our constitution and system of government that no man is above the law, relying on little more

than its own misguided wisdom about the need for, quote, bold and unhesitating action by the president. the court gives former president all the immunity he asked for and more because our constitution does not shield a former president from answering for criminal and treasonous acts, i dissent. that is very strongly worded. vaughn hillyard. trump is reacting. >> the social media posts in which he says in all caps, quote, big win for our constitution and democracy. proud to be an american with an exclamation point. for donald trump he went from calling for absolute immunity to strong immunity right here this morning before the decision came out. for obviously him and his team, there's not only the repercussions of this -- these particular charges brought against him, as part of the alleged efforts to overturn the

2020 election, but also if he were to win the general election four months from now in november, the potential impact it could have on a second term trump presidency. >> john, what about the reaction from the biden team? >> we have a senior campaign adviser from the biden campaign obviously interpreting this as much as trump is as a victory for him saying, quote, today's ruling doesn't change the facts. let's be very clear about what happened on january 6th. donald trump snapped after he lost the 2020 election and encouraged a mob to overthrow the results of a free and fair election. trump is already running for president as a convicted felon for the same reason he sad idly by while the mob violently attacked the capitol. he thinks he's above the law and he's going to do anything to gain and hold on to power for himself. since january 6th, trump has only grown more unhinged, promising to be a dictator on day one, calling for our constitution to be terminated, in quotes, so he can regain

power and promising a bloodbath if he loses. the american people already rejected donald trump's self-obsessed quest for power once. joe biden will make sure they're rejected for good in november. that was a senior biden campaign advisor. >> just a correction on my part. i said that was sotomayor's dissent that i read. it was actually judge ka tan gentlemen brown jackson. >> neal, i know you wanted to get in on this. >> i want to zoom out and not talk about buckets of evidence or anything like that. the big picture here is this is a 6-3 decision along what siding with trump, three democratic appointed justices siding against trump and it is a momentous major decision, and i want to read to you from what justice sotomayor says at the end of her dissent.

i've never seen language like this in a supreme court opinion. she says, quote, never in the history of our republic has a president had reason to believe he would be immune from criminal prosecution if he used the trappings of his office to violate the criminal law. moving forward, however, all former presidents will be cloaked in such immunity. if the occupant of that office misuses official power for personal gain, the criminal law that the rest of us must abide will not provide a backstop, and here's how she ends her dissent, katie, with fear for our democracy, i dissent. >> i mean, it doesn't get stronger than that, neal. >> it doesn't get stronger than that. >> sorry to interrupt you, but have you ever heard a justice be that strongly worded about the state of our democracy. >> i have not, and what she is signaling here it's not just about the trump january 6th case. it's about every president who goes forward and possibly trump next year and being immune now from the criminal law to use the

justice department in ways the court today calls absolutely immune to undermine elections, to go after individuals, this is a -- you know, according to the dissent, which, you know, it seems like as grave a shift in our constitutional system as any in our lifetimes. >> let me bring in a little bit more from sotomayor's dissent. she gets into some of the specifics that were argued in court. she says looking beyond the fate of this particular prosecution, the long-term consequences of today's decision are stark. the court effectively creates a law free zone around the president of setting the status quo that has existed since the founding. this new official acts immunity now lies about like a loaded weapon for any president that wishes to place his own interest, his own political survival or his own financial gain above the interests of the nation. the president of the united states is the most powerful person in the country and possibly the world when he uses

his official powers in any way under the majority's reasoning he now will be insulated from criminal prosecution. orders the navy s.e.a.l. team 6 to assassinate a political rival, immune. organizes a military coup to hold onto power, immune. takes a bribe in exchange for a pardon, immune, immune, immune, immune. let the president violate the law, let him exploit the trappings of his office for personal gain. let him use his official power for evil ends because if he knew that he may one day face liability for breaking the law, he might not be as bold and fearless as we would like him to be. that's a quote from the majority opinion that she's using here. that is the majority's message today's, even if these nightmare scenarios never play out -- and i pray they never do -- the damage has been done. the relationship between the president and the people he serves has shifted irrevocably.

and every use of official power, the president is now a king above the law. th is all from justice sotomayor's dissent. neal, she's arguing that he can assassinate somebody now. is that what this majority opinion is saying? >> that is basically what she's saying the majority is saying, and i'm sure that is how trump will take it. and if you ever thought about the stakes in november and what they were, this opinion makes them very, very clear. the law is not going to be a check against the next president. you have to have someone in power who you can trust to execute the laws faithfully and to comply with the constitution, and you know, now the stakes are astronomical in the way they might not have been before. this is a -- you know, a clarion call to the american public to understand the law, the courts are not going to protect us against a president who wants to violate the law.

the supreme court's basically said you can do that, just slap the label official act on it and maybe there will be a hearing over some pieces of it and there won't even be a hearing when it comes to things like pressuring the justice department to break the law and to do what you want for your personal ends. so this is a really grave decision and i think we should be focused on, you know, justice sotomayor's warning and not the technical details just about what this means for the january 6th prosecutions. >> chuck. >> i'm still reading through it, katie, i don't see anything in here that says the assassination of a political rival is part of a president's core constitutional responsibilities for which he or she would be absolutely immune. the problem, i think, is that much of this is indeterminate, right? that we know certain things are absolutely immune. we know that purely private conduct is not, and that for those other official acts which are presumptively immune, you have to have a case by case

factual analysis. so you know, there is a lot more immunity here than i would have imagined, and i think it sets up some dangers, but i don't see anything here that sanctions, for instance, the assassination of a political rival. >> lisa, i know you have a couple more pages you want to bring in. >> i do. i really want to talk about pages 30 through 32 of the majority opinion, and this goes back to the point i was trying to make earlier about what the role of evidence here is, and this is really something that i think will slip under the radar of most people but will be hugely determinate of what this case looks like going forward. this is where the majority is saying not only is a president immune with respect to his official acts, but evidence of those official acts can't come into any trial. with respect to what we think about in terms of what this indictment is about, that threatens to eviscerate what this trial will ultimately look like when it goes to trial. i'm going to read to you, katy,

from chief justice robert's majority opinion on page 31. if official conduct for which the president is immune may be scrutinized to help secure his conviction, even on charges that purport to be based only on his official conduct, the intended effect of immunity would be defeated. use of evidence about such conduct even when an indictment alleges only unofficial conduct would thereby heighten the prospect that the president's official decision-making will be distorted. is this the justices not only to take out of the prosecution a huge swath of what we thought this case was about, but even to take it out of what a jury can consider as evidence of, for example, the former president's knowledge and intent at a trial. >> i know justice gorsuch called this -- or said they'd be writing a rule for the ages, but i feel like we can't escape the rule that they're writing for the moment right now, leah litman, and this is the rule regarding what donald trump did in january of 2021 and between

november of 2020 to january of 2021, and what he's still doing. it feels like, as we read through this -- and again, we're still going through it. it's going to take some time to digest. it feels like the majority of this court doesn't think what donald trump did was that big of a deal. >> i think that that's right. if you look at what the court did, they effectively looked at the indictment and said some of what jack smith alleged actually falls within the scope of the president's official duties. this was, for example, president trump pressuring the department of justice to potentially, you know, put together a false slate of electors, and they refused to rule out the possibility that the rest of what donald trump is alleged to have done including, you know, talking to the vice president, including being involved in the false slate of electors, including trying to cast out millions of lawful votes, they refuse to say that that is actually outside the scope of the outer perimeter of the president's official duties. i think that's one reason why

justice sotomayor says she is concerned about the future of our democracy, after this opinion because the court refuses to rule out the possibility that these outlandish and antidemocratic activities of the president are potentially within the president's official duties, and that's why, you know, she reads the majority opinion to potentially suggest that ordering s.e.a.l. team 6 or bribing an individual for a pardon, that those acts could be entitled to official immunity because what the majority does is they say we don't care that the president was actually consulting with the department of justice in order to throw out lawfully cast votes. all we care is that he was consulting with the department of justice, and that renders it an official act that's entitled to immunity. >> i should -- by the way, i should introduce you formally, leah litman joins us. she's a university of michigan professor of law and strict scrutiny podcast co-host. leah, i'm sorry for the lack of introduction, but i'm happy you're here, and i'm happy to

hear your opinions on this. do you think that -- how much of jack smith's case do you think survives this? >> i think the ruling is written in a way that is very pro-trump because they are directing the lower courts to apply a presumption of immunity, and basically direct the lower courts to go through and carefully look at every allegation and ask whether it falls within the presumption of immunity. they also iterate that the government bears the burden of showing that certain acts are not entitled to immunity. now, i also happen to think that many of the allegations in the indictment are obviously not within the outer perimeter of the president's official duties, but the reality is is that by writing the opinion this way, they have made it harder for the lower courts to proceed to trial and harder for the lower courts to allow much of the indictments to proceed as well. >> all right, so we are resetting. it is 11:00 a.m. here in new york. the supreme court has just handed down its decision on presidential