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 immunity.

again, it's a mixed bag decision. there is some presidential immunity. there is presidential immunity for official acts, not unofficial acts. the way that they've worded it as we've been discussing at this table and with our guests is that it does seem to lean heavily toward donald trump's arguments here, that he can do what he wants to do as the president of the united states. let's bring in ken dilanian outside of the supreme court. ken, what do you have? >> reporter: yeah, katy, i think the analysis here has been spot on. you know, the decision goes a long way to say that the president is not above the law and that private acts, unofficial acts are not immune. but if you look at the implications for jack smith's indictment of former president trump, they appear to be dire because there's a whole section in the indictment about donald trump's efforts to enlist the justice department to falsely- allegedly falsely proclaim there was fraud in the election, write letters to states. that is completely out according to this decision, and then you get to his conversations with vice president mike pence, which

are a key part of the indictment. this decision says that there's a presumption that those are immune but that prosecutors could seek to rebut that in lower courts. it also says his public statements, the public settlements of any president are largely immune. so the speech at the ellipse, any social media, the tweets, the truth social posts that is largely out of this case. what is possibly remaining in the case are donald trump's and his allies conversations with state officials, with private parties in their efforts to get state officials to conduct investigations into bogus allegations of fraud, and what this decision says is that all that has to go back down to the district judge who has to scrutinize in close detail every single one of these allegations and decide what constitutes private conduct. what could possibly be official acts, and then of course that's appealable, and so the idea that this case could go to trial before the election is completely out the window.

that's not happening. in fact, it could take a year or more to sort through this stuff, even if donald trump doesn't win the election and the case still goes forward, the supreme court decision greatly complicates this major indictment of donald trump by the special counsel, katy. >> there's a little more that i want to read from page 32, again, lisa directed us to pages 30, 31, and 32 before. here's an interesting portion of it. this is the majority k opinion. this is chief justice roberts writing, trump asserts a far broader immunity than the limited one that we have recognized. he contends that the indictment must be dismissed because the impeachment judgment clause requires that impeachment and senate conviction precede a president's criminal prosecution. the text of the clause provides little support for such absolute immunity. it sates that an impeachment judgment shall not extend further than to removal from office and disqualification to hold and enjoy any office of honor, trust, or profit under

the united states. chuck, can you interpret that for me? >> yeah, this was an argument that mr. trump's lawyers put forth. i thought it was -- i think the technical legal word for it is silly. it was never going to get any traction in the courts of the united states. the notion that he had been impeached in the house but acquitted in the senate would preclude a criminal case against him is nonsense. and the court is saying as much. i just want to add one note of caution. if you look at the underlying indictment against mr. trump, much of what is alleged is private conduct, and it's alleged to be unlawful. based on my reading of this opinion, that stands. >> you're shaking your head in my peripheral vision, so go ahead, andrew. >> i disagree. i agree with you before the decision came out that the court that goes through the allegations in the indictment, and they say the doj matters are out.

their core -- >> i agree with that. >> but with everything else it says that there is a presumption that they are official. >> so you shook your head a little bit too quickly because what i was going to say next was -- [ laughter ] what i was going to say next was they're still in. they are going to be the subject of the hearing. judge will have to apply these new standards to determine whether or not they survive or not. but they might, and before we decide that the indictment is dead or mr. trump is going to walk, we ought to see what happens at the hearing below when judge chutkan tries to applies these standards to the allegations in the indictment. but andrew's right, it makes it much harder. i don't disagree with that at all. >> i want to bring in maya wiley as well. lisa's trying to jump in. maya, just hold on one second. hold on a little bit before -- tell me what you're thinking now because i have a follow-up question to something that justice barrett disagreed on, but go ahead. >> i want to put my voice in

with andrew's choir here and say this is much more of a disaster than it might seem based on the rules that are being carved here. for two reasons, one, at oral argument john sauer acknowledged that the fraudulent election scheme was what he would describe as private conduct. despite that concession in the majority opinion their saying that lives for another day to determine whether or not that's private. that's conduct that chief justice roberts expressly describes among the buckets of stuff that judge chutkan still has to weigh whether it's private or official indicating that they think it might be official. the second thing -- and katy, this is a big deal -- it's on page 18. there's a big paragraph in terms of the guidelines for judge chutkan in determining what's official and what's unofficial, and they say the majority in dividing official from unofficial conduct, courts may not inquire into the president's motives. this was a huge issue at oral argument. chief justice roberts asking john sauer what about bribery.

let's say former president trump or a president appointing somebody to an ambassador dorship and gets a whole bunch of money for that, are you saying we can't consider the bribery but we can consider the acceptance of the money? that's nonsensical. despite that they're carving a ruleout that says the motive can't be considered. if you appoint somebody it doesn't matter whether you're doing that for your own private gain. >> how can that be? how can they write an opinion that says? >> i want to be clear with what we're seeing here. i want to go back to neal's comments, this is not so much an opinion as it is a broad edict meant to serve a particular moment, even while they say they are writing a rule for the ages. >> this is a rule for the moment. let's bring in maya wiley officially, president of the leadership conference on civil rights and human rights. maya, give us your top line thoughts come into this conversation. welcome.

>> thank you. my top line legal thoughts are cray cray. so i was right there with andrew and i love chuck and i want to read it the way chuck is reading it. and i actually had -- what i was going to jump in and say exactly what lisa just said about the motives point so why don't we just go back for a minute to what the indictment alleges because that's what makes it so clear that this is such -- in so many other ways, there's so many things we could say. but remember that this indictment starts even on the first conspiracy, on conspiracy to defraud the u.s. going step by step about every executive in the trump administration appointed by donald trump telling him he lost the election. that's how the indictment starts. literally doj, homeland security, his cybersecurity appointee who he then fired, everyone including -- and then you could talk about the private side, his campaign manager

telling him he lost the election and that in arizona, which is the first of the seven states that is, you know, run through in the indictment says all the things donald trump directly did despite being told there was no evidence of the things he was pushing in arizona elected officials on. and by the way, what is the official act of a president about how a state is executing its elections, calling up personally. i agree with chuck, if you are reading this in the way i actually think the fact that we're even talking about this when we look back at u.s. versus nixon where jaworski had every assumption he could prosecute nixon didn't because he thought it was a bad decision, not because he didn't think he could do it. you even had u.s. senators in the trump impeachment think that he could still be indicted. >> mitch mcconnell said so. >> mitch mcconnell said so, at least the supreme court says that, but go back to the fact

that they wrote this opinion the way they wrote it on the facts of this indictment makes it so clear to me that it is not written for the ages. >> let's bring in neal katyal. neal. >> i want to return to this point from the dissent about the impact of this decision today on our democracy, and you know, in response to chuck, and chuck's absolutely right, the majority says there will be case-by-case hearings to determine whether something is an official act or not. i just don't think -- and i agree here with the dissent -- that that's any sort of protection here. we've never needed those kinds of case-by-case hearings before. we've always just assumed a president is not above the law. and in these hearings, these case-by-case hearings as lisa points out, you can't even introduce any evidence of a president's motive, why he was trying to do something like pressure the justice department or do whatever, and there will be a presumption in favor of the president. as justice jackson says that's

just ridiculous, and here's what practically this means. a president like donald trump next year or whoever the president is can take a blatantly illegal act, slap the label, hey, this san official act, and write that in the preface to whatever the heck he's doing, and now we're going to have to have hearings and so on before district judges and then appeals to determine whether it's truly an official act or not, and it will all take place against the backdrop of this supreme court decision which says when you pressure -- if you're the president and you pressure the justice department to throw out or to impugn election results where you obviously have the greatest of personal motives, that's not a personal act. that's an official act. so if that's your standard for what is an official act, much else is going to be official and what does this mean practically? i think it means if you're joe biden, if you're a democrat who's running for the president, your path right now is clear, you have to run against the

supreme court. you have to run against this decision. this is not america. if you want to make america great again, you've got to return to the rule of law, this decision today is a blueprint on how to end the rule of law. >> are you arguing adding justices to the supreme court? >> i'm not arguing adding justices. i'm arguing that we need to have justices that are consistent with the rule of law and with the most basic american tradition of which no person is above the law, and you know, i think unfortunately the dissents are right here in saying this really changes the nature of our entire government and presidency. >> neal, running against the supreme court these are life appointments, so unless a couple of them decide to resign or something happens, you're not going to get mooigt not get one in the next four years. there is impeachment, that's a possibility for justices. it's a long shot, but it's a possibility. >> i'm not saying anything like that. i am saying i think much

attention has to be given to what this decision will do to our separation of powers. to our rule of law as well as the decisions from last week in dobbs and the like. this court now seems pretty out of step with mainstream american society, the idea that a president as president could pressure his justice department into doing certain things to help him in the election and to call that absolutely immune, something that can't be looked at by a court is, you know, i think constitutionally unfathomable and a real disservice to what the rule of law is about. >> interestingly, on the subject of motivation and the question bribery, that example that was brought up, you have a disagreement from justice barrett. she says arguing that in a prescribe ri is excluding any mention of the official akts associated with the prescribe would hamstring the prosecution. so there is some tension even within this majority opinion. >> yeah, this issue of like sort

of what evidence could come in, and this came up at oral argument. i'm a little surprised that chief justice roberts goes with sort of exclusion here and he says he can sort of deal with justice barrett's concern about evidence by saying you can sort of work around that problem. i'm really surprised by that. i'd like to underscore what neal is saying which is because -- the presidency always has a lot of power. there's no question about that, and just the way in which donald trump talks about it for instance, the use and abuse of the pardon power is reason enough to be concerned about who holds that office. this decision today makes it so imperative that the person who holds the office understand the limits on and exercises those powers with restraint because this -- the thing that is not dealt with here is the hypothetical that was dealt with

in the court of appeals about s.e.a.l. team 6. it is unclear how this -- they actually studiously avoid dealing with that because you could make the argument that that is official conduct. at the very least, presumptively official -- >> how would you make that argument? >> you'd say there and say i have determined as commander in chief that this is necessary, and the way that judge pan in the lower court phrased it was what if the president decides that a political adversary is a threat to democracy and orders the killing, and why isn't that now an official act with a presumption of immunity, and remember, you don't look at motive. you can't consider that he's doing it to get rid of his add adversary. >> chuck you've got a stone cold face and i've got to get your opinion. >> look, andrew is much smarter than me, and so is neal and maya and lisa for that matter, but

i'm worried that -- >> notice he left me out. [ laughter ] >> did i leave you out? >> i'm kidding, i'm kidding. i can see you guys are all very smart and much smarter than i am, but please tell me why you have -- i sense some discomfort with the lengths that this conversation is going to, and i want to know why you feel that way. >> it strikes me as a little bit odd and perhaps hyperbolic that our successive presidents will become cold-blooded assassins and will try and hide that conduct behind this case. to andrew's point, it's only -- only, quote, unquote, presumptively immune if you do something like that, and it's hard to imagine that a president, including mr. trump, would kill a political rival and try to hide behind this case. i don't think it offers that much help to him in the main. in this particular case, it's going to be hard for the prosecution, but if i were the prosecutor in this case, katy, what i'm starting to do right

now is marshal my arguments that very, very few of the things we alleged are core constitutional prerogatives of the president, that many of them are private, but not all to andrew's earlier point, and that those that are, quote, unquote official are rebuttable, and that's what i'm trying to do. >> so you can argue they're actually not official. >> correct. and that they're not entitled to immunity. does my burden as a prosecutor get more difficult? absolutely. have i lost this indictment and this trial? absolutely not, and so i would tell everyone to take a breath, watch the hearing below and reassess. >> as i promised, i want to bring in former law clerk to then judge sonia sotomayor, melissa, what are your thoughts? >> i totally disagree with chuck. i don't think this is an opinion that across the board is meant to be a neutral assessment of the scope of presidential power.

this is a court that painstakingly went through this indictment and identified certain aspects of that indictment and put a thumb on the scale essentially as to whether it should be considered official or unofficial presumptively subject to no to immunity or subject to immunity going forward. in doing so they essentially laid out a map for the district court and for donald trump, if he chooses to appeal anything that the district court does, about how these things should be decided. this is a decision written about this former president. it's, again, going to have real ramifications going forward, but i think neal is exactly right. it is about an imperial court constructing an imperial presidency, and joe biden should be running on that. and that doesn't mean, katy, that it should be about court reform. but it should be about a court that has consistently arrogated power to itself and now is arrogating power to someone who poses a threat to democracy, and this decision poses a threat to

democracy just as the dissent said. i want to point your attention to one aspect here where they specifically talk about the allegations involving donald trump's conversations with mike pence where donald trump allegedly tried to get mieng mike pence to intervene to stop the certification of the electoral college. whenever the president and vice president discuss their official responsibilities they are engaging in official conduct. that is presumptively official, and the burden then is on the government to disprove that it's outside of the scope of official conduct. that totally hamstrings the government. it's also the case here that the opinion suggests that conduct that is outside of the scope, that is not subject to prosecution cannot be used as evidence to establish that other conduct that is within the scope of prosecution has happened, so that also hamstrings the government, so this is a decision i think it would be hard to sort of say is just about the presidency full stop. it's about the presidency of

donald trump and about allowing him to go forward and escape accountability for the actions that took place on january 6th. >> when you say that, i'm drawn to something that justice thomas wrote in his concurring opinion. the words used sound very trump like. in this case, there has been much discussion about ensuring that a president is not above the law, but as the court explains the president's immunity from official acts is the law. the constitution provides for an energetic executive because such an executive is essential to the security of liberty. i say that sounds trumpy because trump always calls himself energetic and he's got the stamina and the force of will. and he's got the energy i'm going to say that again to be president of the united states. it's a way that he's contrasted himself against many candidates, what he's trying to do right now with president biden. we want to sneak in a very quick break. on the other side of things, we're going to talk about how

this is going to affect politics and the presidential race. there is a lot up in the air for the race for the white house, a lot of big decisions. what does this immunity decision from the supreme court do to the race for the white house. we're back in 90 seconds. house we're back in 90 seconds i'm andrea, founder of a boutique handbag brand - andi - and this is why i switched to shopify. it's the challenges that we don't expect, like a site going down or the checkout wouldn't work. what's nice about shopify is when i'm with my family, when i'm taking time off, knowing that i have a site up and running and our business is moving forward because we have a platform that we can rely on. that is gold to us. start your free trial at shopify today.

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that's going to go down to judge chutkan. this reads and this is the majority of us here, not me included because i'm not a lawyer, but the majority of our legal minds believe that this is a pretty negative ruling for the doj, for the special counsel, a pretty positive ruling for donald trump. of course chuck rosenberg is reading it slightly differently. there is going to be some politics at play here about what this means for the race for the white house. joining us now, nbc news white house correspondent monica alba, nbc news senior national politics reporter jonathan allen, suzanne susan glasser an wiley. is the white house team, the trump campaign team or the biden campaign team reading this as a loss? >> reporter: well, we are hearing from a senior biden campaign adviser first here, katy, and i think that's partially telling as well. we are talking about the politics here, and the white house for its part has been very careful about weighing in on some of these cases that apply to ongoing legal matters, and

they want to be really respectful of that, and they want to be sure to be completely independent of that before weighing in on some of this. so while president biden has talked about the court largely and has really said he believes this current court is out of whack in his words and really out of balance he has suggested, they're waiting before weighing in on that side. but from the biden campaign side of things, no surprise here. they weighed in quickly on this by focusing on january 6th and the acts and events that unfolded that day, and they put this in the context of what donald trump did, what he directed, and what he has talked about since then, and they really put this in the frame of this statement that they released that this is about someone who they argue in the former president has said he wants to be a dictator on day one if he's reelected and somebody that the biden campaign and senior advisers would argue would really stop at nothing to

try to get more power. and essentially that is the context that they're putting this into. and they are saying that donald trump has clearly time and time again spoken about his approach to january 6th and what he thought of the january 6th rioters and that nothing about today's decision changes that, and his hunger for more power. >> john, the trump team is seeing this as a win. donald trump is coming out and praising it. >> yeah, it is a win for them, katy, as folks have been discussing here, i think on a couple of levels. number one, obviously this obviates the possibility of him being prosecuted before having a trial done before the election, but i think even more broadly president trump, former president trump has been making the argument that he did nothing illegal with regard to his efforts to overturn the 2020 election, and the court has said much, if not all of his conduct is basically immune. the conduct that might not be immune is something for a lower court to decide whether it's in or out of that scope and have

future fights. he's going to be able to go out there and say, look, i was right. we went to the supreme court. the supreme court ruled for me. for the democrats, i think they are going to look at a potential backlash among the public and make the argument that donald trump is not the person that you want to hand all of this power that the supreme court says the president has. they're going to say you don't want to give that to trump, for all of the reasons that the guests have just been talking about in terms of what conduct might be protected under this new sort of idea of immunity for official acts, and then the presumptive immunity for things on the outer periphery of official acts. >> david, jump in on that, how is this being seen? it could be -- there could be a backlash among some voters. maybe there's a backlash among independent voters. maybe they see this as overreach and get nervous about all the powers that donald trump might be handed if he were elected president again. maybe they decided to switch their votes. how is this playing, though, in another ecosphere. >> well, look, i think we're

going to have to see how the public digests this. the public has been and voters in particular have been focused on kitchen table issues that affect them day-to-day. a lot of the arguments about these very important topics that we have in washington and higher circles don't always trickle down. let's see if this trickles down in the way the dobbs decision trickled down because it was about an issue that so many voters felt so viscerally. i think that's number one. number two, it's interesting that every -- every legal loss that former president donald trump has suffered has been good for his political prospects, good for his campaign. it's helped him raise money. it's helped him solidify republicans behind him and even grow the base of republicans behind him. so here's an area where he can claim victory, but we're not necessarily going to see the backlash from a loss that juices his fund-raising and brings more republicans to his side, and

then, you know, next, it certainly at a time when democrats could use some good news coming out of last week's debate, this is a very serious topic, and i don't mean to break it down toinconsequential. from a pure political standpoint, this gives the president's campaign something to rally around. now, the president still as a side note here, has to deal with the fact that if we're going to discuss donald trump and if he's going to make the case that donald trump is a unique threat to american democracy, coing out of that debate he's also going to have to make the case that he should still be the nominee if this election is that important. >> that's still very much a part of the conversation. susan on that subject, there was this talk about whether this case and this ruling would give president biden a break from the discussion about whether he should run. i wonder if it does the opposite, though. does it make the stakes even higher and the bar for him potentially even higher to stay in this race?

>> yeah, i think that's an important way of framing it. that's what i've been thinking really in the few minutes that we've had to digest this ruling. it clarifies with real urgency the stakes in this election, but it does not illuminate a path forward for democrats. if anything, i think it creates even more sense and awareness of the stakes, the even existential stakes, and that's what's been happening the last few days, i think, is that the biden campaign has been caught by their own rhetoric, and they've never resolved the contradiction. joe biden has been running for re-election by saying that democracy itself is on the line while doing something incredibly risky in asking americans to place democracy itself in the hands of a faltering, octogenarian. and so i think in many ways it kind of reinforces without clarifying where this agonized debate among democrats is going,

first of all. second of all, obviously you've got the ghost of richard nixon laughing, you know, somewhere up there right now because his theory of an expansive and essentially unchecked presidency is now being validated by a very radical donald trump-appointed supreme court. and i do think that trying to understand and really get at what is the agenda for a trump second term when he would be empowered on day one to do things that we previously thought were unthinkable. i just think that we are really headed for a disaster in a way that it's hard to think through in the first half an hour all the consequences of it. >> yeah, of course, we're going to digest this. we're going to get around to the full impact of it. you're right, you can hear the echoes of richard nixon saying when the president does it, it's not a crime. this is very much how this ruling is so far read to us. the biden team keeps saying that you can't judge his campaign,

his presidency based on one night alone, but this has been a long time coming and that night, that debate night was supposed to ease fears that he's too old to be president. this is a conversation that's been had for months and months now, more than a year now about his age. the democrats have put him in place, president biden has kept himself in place. with a ruling like this, what is your expectation for how democrats will respond? >> yeah, i think it's important to raise this because, again, we've heard a lot of gaslighting, frankly, from democrats defending joe biden over the last few days asking millions of americans not to believe what they themselves saw with their own eyes, and i think it obscures a more important point, which is that it's not about a bad 90-minute debate. it's about what is the trajectory of president biden. he is asking americans not to reelect him to office as he is today, which is already

questionable, but how he would be over the next four years, ultimately ending up at 86 at the end of his second term, and i think that that is a conversation that they have frankly done a brilliant job politically speaking of obfuscating for the last couple of years, but is now finally occurring. >> i've been talking to donors, i've been talking to lawmakers, i've been talking to voters. the question is can he can campaign to can he govern. that is a dangerous morph to happen. it's a dangerous conversation to have regarding the president, especially with stakes that have been so clearly laid out by the supreme court of this country saying that a president enjoys a whole lot of immunity. when you're talking about electing somebody with judgment, you better be sure that the judgment of that person who's fg to hold the office is judgment that you think is sound. donald trump has proven otherwise time and time again. all right, politics aside, we're going to go back to all the law. we're going to read more into this decision. there's some interesting points about how the president can interact with his doj. we're going to get into that in

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decide the distinction between official acts, nonofficial acts, what can't be introduced into evidence, what can be introduced into evidence. this does read like quite a win for donald trump, handing over broad immunity and broad power to an executive to use their judgment and their judgment alone. back with us, lisa rubin, maya wiley, joining us, katie phang, msnbc legal contributor and host of the katie phang show here on msnbc and paul butler, a former federal prosecutor who is now a law professor at georgetown university and an msnbc legal analyst. we're getting his camera set up. there he is. all right, you guys are coming into the table. there are a couple of places that we i think need to go. one of them is on whether the special counsel is constitutional. justice thomas weighed in on that. there's also questions about one of the areas of core immunity that the supreme court outlined, and that is the president's interactions, his charge of the department of justice. so these kind of blend together.

first let's talk special counsel, katie. >> so i was alarmed to see that, lisa and i were talking about it during the break, that it came up during oral arguments that i was at at scotus. but as a blip on the radar, and the reason why i'm concerned is it kind of invites an issue from judge aileen cannon in florida in the classified documents case. i was just in court where donald trump moved to dismiss the indictment claiming that the appointment of special counsel jack smith was in violation of the appointments clause and it also violated the appropriations clause meaning the funding was inappropriate for special counsel jack smith. of course we don't have a ruling from judge cannon. that is pro forma for her. it takes forever. my concern is if there's an invitation in the concurrence by justice thomas for there to be a question of the validity of the appointment of jack smith. that goes beyond this analysis. it goes to the core of whether or not independent counsel can prosecute a president at this point absent what donald trump thinks is the way to get there. >> i'm going to game that out

for a second. say she rules that the case is dismissed because jack smith chs appointed incorrectly. that goes to the appeals court. the appeals court, say they rule, no, that jack smith is fine, and say they get rid of judge aileen cannon in the process, which is something we've been talking about. when would jack smith have a reason to try to move for her dismissal, fine. does that then go to the supreme court and then does the supreme court decide this, and do we have an indication from this ruling what the supreme court stands -- where the supreme court stands on this? you and i have had this conversation a lot, which is why i'm going to you. >> i don't think we have an indication of where the full court stands on it. we know that justice thomas has a bee in his bonnet about this issue. i tend to think judge cannon is not going to dismiss that other case on these grounds based on legitimacy of the special counsel and katie is right to flag it. >> remember, scotus has to have

a case to get there for them to hear it. you can't just pluck it from the district court and say i'll take it over right now for you. if you have a route or a path to get there, they're waiting. this supreme court has shown they're ichg for these decisions to come from the judge in texas. they are looking for an opportunity to do this. i'm not so casual about judge thomas's concurrences. we heard him in his concurrence on dobbs say oh, we have questions about interracial marriagesnow, and we should question contraception. there is this way for them to be judicial activists even though they scream and complain about judicial activism happening. >> he's in an interracial marriage. did he actually question interracial marriage? >> i think he did both. i think he sided to both decisions. >> he was questioning marriage equality but the basis of his analysis would place analysis on loving and the case about interracial marriage in question.

to the point about whether the president has immunity and whether jack smith was appropriately appointed, again, all of the courts that have looked at that issue of the appointment of the special counsel have said that there's no argument against his appointment, no constitutional argument. so that's what the precedent means. we used to say if all of the lower courts have ruled this way, the supreme court will probably go this way as well, and this instance with immunity, we had a unanimous decision from the court of appeals for the district of columbia. >> a pretty strong unanimous decision. >> including a very conservative judge who had voted with trump in other cases. so this court once again like it did in affirmative action, like it did with roe versus wade it throws away precedent. >> tell me if i'm dreaming this, doesn't the d.c. circuit court of appeals, their rulings are generally in line with the rulings of the supreme court, am i right to remember that? >> i think they get a lot of respect from this court including because several of

them have come from this court. you can think about the d.c. circuit as being jv supreme court. >> that's how i think of it. >> because of that, because they know these folks, they're colleagues of theirs, former colleagues of theirs, they tend to get a lot more deference than other courts of appeals, and they tend to be more in line with the mainstream of this court, if not necessarily the mainstream america. >> mike, can i ask you about doj. core immunity in this opinion is that the president's interactions with doj are immune. what does that mean? >> that a president who runs for office and gets elected saying that he is going to turn the organs, the departments of the federal government including the department of justice, against his enemies, now has a very clear path legally to claim that he's immune and back to lisa's point and others about the way this opinion sets up the

presumption and the power because -- merely because it's a conversation with the executive branch of government makes it very hard to imagine, not impossible to chuck's point, not impossible, i'd argue what chuck is arguing if i'm jack smith's team, but it makes it very, very, very hard to figure out how that gets pulled into line. >> i'm just thinking of a couple moments that we learned about donald trump's interactions with doj when he was in the process of trying to stay in power, and one of them was what you mentioned in the break, which is a conversation he had where he said just leave it up to me and the republicans. i'll let you flesh that under the -- that out. he wanted to order the doj to order the military to seize the voting machines. would that be okay under this ruling? >> under this ruling from what i see in this opinion with respect to conversations with the department of justice or

considerations between the department of justice and the executive office of the president, the president is absolutely immune for that category because the court is considering that to be something that predates, conversation about official and unofficial, there's a category of core constitutional authority for the president. they are saying that those conversations that the president is having with his own department of justice, which he is empowered to direct as he wishes, that that falls into that core constitutional authority for which there is absolute immunity. it's not even a question of a presumption of immunity. that's absolutely immune. then there are many other layers to the indictment where we get into this question of is it sufficiently official versus unofficial, that's where the further fact finding by judge chutkan will come in. you raise an interesting hypothetical, how far can that go? i think the answer is pretty darn far, especially because this ruling also tells you that you can't consider motive. >> i wonder when he starts trumping states' rights. it's up to the states to conduct their election.

if he's trying to use the doj, that he can use as he wants according to the reading of this, can he order them to interfere in a state's election? where does that power? >> let me play a hypothetical with you. there was an episode where jeff bossert clark has a letter that he wants to send to the legislative leaders of georgia telling them pull back your certificate. and that letter gets squashed by other authorities at the department of justice who convinced the president you shouldn't send that. you shouldn't make this guy the attorney general. if that letter had been sent and if georgia and other state legislators had decided, you know what? our certificates of electors, we're just going to pull them back, those aren't our legitimate certificates anymore, we're going to override that, that too would have been immune from prosecution. >> we are going to take one more very short break. i want to come back on the other side and talk about something that chief justice john roberts wrote in his majority about the dissenting opinions and what it tells us about the conversation we're having and the way that he would listen to this

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okay, the supreme court has ruled that donald trump or presidential immunity. back with me, maya, katie, eddie glaude. before the break, i teased that

chief justice john roberts doesn't think the dissents are in his words, wholly proportionate to what the court ruled today. he says as for the dissents, they strike a tone of chilling doom that is wholly disproportionate to what the court does today. sotomayor had a chilling dissent to where she said she worries about the fate of democracy. >> the chief would have loved unanimous decision. he was concern that had a 6-3 decision with the conservatives and majority and moderate justices were political. we have a 6-3 decision and it looks political. the lower courts refer to trump as citizen trump, making the point that a former president has no special rights. in her dissent, justice sotomayor says now we need to talk about trump. she says this decision

ultimately creates absolute immunity for three reasons. she says first, the court talks about core constitutional responsibilities for which the president enjoys absolute immunity. she asked why is the court talking about core constitutional responsibilities in this case? the indictment doesn't allege anything that implicates core constitutional responsibilities. then she says in so far as there is expansive immunity for all official acts and that use of any official act for any purpose no matter how corrupt, now the president is immune for that. she says that's as bad as it sounds. the third reason she thinks this opinion gives absolute immunity to the president no matter what it says is that evidence of official acts can't be used for any criminal purpose. it's like she's saying the court's creating new rules of

evidence that bar what everybody would say is relevant and the jury should know about. now a jury isn't going to be allowed to know about things like trump's communications with the justice department because that's an official act. >> i would just note we saw that the adverb respectfully was omitted from the scathing, appropriately scathing dissents of justices sotomayor and jackson. you normally will see this deference afforded to colleagues on that bench and they made it very clear today that they do not respectfully dissent what was created. they've effectively noted they have created for the office of the presidency, a god save the king energy now moving forward. a lot of us predicted this with a protocol or structure of this analysis and yet paul and i were talking during the break. there's an emphasis within the majority of what constitutes an official, unofficial act.

how can you have contexts you don't consider motive, you don't consider these official acts in the whole scheme of what happened. >> it does sound like they're creating a special category for donald trump. >> a carve out. if you look at the historical record, sotomayor argues, never existed until today. i'll read more from her dissent. we always hear about conservative citing the federalist papers and historical contexts and this is an originalist court and they're going to take that view. she cites the federalist papers she says the historical evidence cuts decisively against it. alexander hamilton wrote that former presidents would be quote liable to prosecution and punishment in the ordinary course of law. that's federalist paper number 69. page 452. for him, that was an importance distinction between the king of britain and the president of the

united states who would be amenable to person punishment and disgrace. i mean, if you're going to say that you believe in historical precedent, how much clearer does it get than alexander hamilton saying liable to prosecution and punishment than the ordinary course of law? we fought a revolutionary war to break free from the kingdom of england and the absolute rule of a king or queen to make our own democracy one in which everybody is treated the same, equally, obviously not great for a long time, but equally in theory, under the law. >> history only matters when it serves their end. that's what it seems to me. what i read from this, not as a technical person, a lawyer or anything, now the imperial presidency is now made concrete. it's not about who's in office, about their temperament, their disposition. the imperial presidency is now concretely here. and so just for me, just as historically, katy, what would

it mean now? for nixon to have lived under this ruling? what we have even had watergate is the question. it's from there, donald trump has always had around him those supportive of him and of the imperial presidency and that line blurred over and over. you saw it with bill barr. now the imperial presidency is substantiated along with the imperial court. here we are. >> it does put a lot of burden on to the voters to elect somebody who has good judgment. who has good, just judgment and won't try to take this ruling and use it to their own advantage. then allow the courts on a case by case basis to decide whether that was taking it too far. >> it puts the onus on voters in a way they have never understood. but this is the same extremist court just like we fought a

revolutionary war, we also fought a civil war and it has completely eroded also in ways that i would argue have not been consistent with its own precedent. voting rights. it's made it harder for voters to vote. a former president. citizen trump. who has said he will abuse the powers of office for his own personal gain as a campaign platform and saying to his voters, but you'll be fine. because i will be your retribution. if voters that look like ed and katy, you. for all of us, who he's really saying, but i'm not going to serve the whole country. i'm only going to serve my base. >> is there a more generous way to read this opinion? chuck rosenberg was on and he was pushing back and saying there are still opportunities and legal possibilities for the

special counsel. that this is not, he wasn't reading it with such a -- >> he said the same thing with the -- 1850. there was room. it's dire. room to wiggle. chuck is my friend. no. this decision is a fundamental threat to american democracy. >> i think the case still, i'm sorry, paul. i think the case survives. if anybody needs a silver lining, jack smith still has a case and silver lining. i think the fear is, there was an argument we heard about the one legged stool. what is left to be able to prosecute? there's a lot left in this indictment. i think what's problematic is you create another path to the supreme court where after judge chutkan makes these determinations, what makes it back. do you notice how donald trump isn't being prosecuted for his

conduct during his administration? there's a key difference between candidate trump and president trump and he is not being prosecuted for his very bad decisions while in office. it's what he did post election and leading up to january 6th. that conduct is clearly criminal. doesn't have a blanket of immunity in any way. that is conduct he was doing to further his own personal motives and goals, which is why again, you have a case to prosecute but what is left. >> that's a good point to make. this is not about the policies he enacted. the moves he made while president. it was about the moves he made to keep himself in the white house after he lost the 2020 election. everybody, thank you so much. it's been such a morning. it's been great to be here with you, the viewers, on this truly historic and significant day. that's going to wrap things up for me. i'll see you back here at 3:00 p.m. you're going to see yamiche in a