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you'll get proactive alerts for market events before they happen... and insights on every buy and sell decision. with zero-commission online u.s. stock and etf trades. for smarter trading decisions, get decision tech from fidelity. good evening. i'm kaitlan collins. we have breaking news tonight on what might have been an exit ramp instead of the road that ended yesterday in federal felony charges against donald trump for mishandling highly sensitive government documents. might have been if the former president hadn't said no to the idea. this is new reporting according to "the washington post"

tonight. it begins in the fall of last year. the end of 2022. christopher kise one of his attorneys appeared with him in court yesterday apparently proposed trying to quietly arrange a settlement with the justice department. the hope was according to the report the attorney general merrick garland would be looking for a way not to prosecute and kise would, quote, take the temperature down. however "the post" citing three people briefed on the matter said mr. trump wanted a more combative approach and so instead kise abandoned the outreach and it never actually happened. i should note separately a source close to the legal team tonight is telling me they're casting doubt on that ever being a real opportunity given what was listed in the indictment yesterday predates when kise joined the team late last august. fast forward all of this to the present and what is happening now attorney general merrick garland is weighing in on not the case itself but defending the man running it, the man who was in the room yesterday for the first time with the former president special counsel jack

smith. >> mr. smith is a veteran career prosecutor and has assembled a group of talented prosecutors and agents who share his integrity to the rule of law. this is notable because it is the first time we've heard from garland since news of the indictment of course came out last week. what else did he say about jack smith? >> it is surprising because this is not an attorney general who talks much at all about the special counsel, so to even hear him come out and defend smith was significant. he is also defending the justice department as a whole from rhetoric from former president trump and his allies. he went on to emphasize the special counsel is operating independently and the justice department is all about

accountability. he was asked about concerns about possible violence and said he wants to protect people from threats of violence so obviously that ship has sailed but also wants to protect people from any of the threats actually being realized. >> of course those were threats that you talked about yesterday. we heard from a lot of republicans, allies of the former president's, who say this is attorney general garland, who is prosecuting biden's top political rival right now. what actually is garland's role when it comes to the special counsel's process? obviously he appointed him. what is his role now? >> up until former president trump announced he would be running for the white house attorney general merrick garland and the justice department were overseeing the criminal investigation into the possible mishandling of documents at mar-a-lago in addition to the former president trump's role in january 6th. but once he announced his candidacy special counsel jack smith was appointed by merrick garland and the reason you have a special counsel is so that you can have someone who can

independently investigate if the justice department feels there might be an appearance of a conflict of interest or a real conflict. here jack smith has been operating mostly independently while he is subject to the same rules and regulations of the justice department technically the attorney general can fire him, mostly, though, the attorney general issues broad deference to any prosecutorial decisions made by the special counsel. if he was to decide something the attorney general didn't like he could override it but he would have to notify congress. i can tell you, kaitlan, for the past few months garland's staff have been emphasizing the fact that this decision would likely be mostly by the special counsel and granted broad deference. you could ask one of his staffers what time it is and they would respond by saying the special counsel has broad deference. this is his decision. they are trying to emphasize how this is independent. >> thank you for that. context there of course. we also have new reporting tonight on the former

president's view of the latest charges. what does he really think? these two clips here appear to reflect it. one, we are going to show you from the night of his arraignment in new york. of course those were charges of falsifying business documents. the other is from last night. first i should note of course both have been fact checked. both contain unfounded allegations. the form ear president's claim in the second clip which is about the presidential records act is false, just not true. we are showing them because of the contrast they seem to reveal between how trump then and trump now is responding to these respective charges and the different way he sees them. here he is after he was arraigned in new york back in april. >> elections were like those of a third world country and now this massive election interference at a scale never seen before in our country beginning with the radical left, george soros backed prosecutor alvin bragg of new york.

as it turns out virtually everybody that has looked at this case including rinos and even hard core democrats say there is no crime and that it should never have been brought. >> that was the former president back in april being almost off handed about the situation at the time, distancing it, not really talking at length about it. this time though our reporting is that he is taking these charges far more seriously to the point his legal team signed off on his remarks last night, actually reviewed the speech before he gave it. this is part of what he said. >> judge amy berman jackson's decision states under the statutory scheme established by the presidential records act, the decision to segregate personal materials from presidential records is made by the president during the

president's term and in the president's sole discretion. the socks decision as it is known also states, quote, the national archives and records administration or nara does not have the authority to designate material as presidential records. the president enjoys unconstrained authority to make decisions regarding the disposal of documents. many people have asked me why i had these boxes. why did you want them? the answer in addition to having every right under the presidential records act is that these boxes were containing all types of personal belongings, many, many things. shirts and shoes and everything. >> again, that is not what the presidential records act says. you can read it. it is quite short. joining us now jim acosta, gloria borger, cnn's legal analyst and former deputy assistant attorney general elliott williams, and republican

strategist doug high all here with us tonight. elliott, let me start with you on this reporting from "the washington post" that chris kise still a trump attorney had the idea to go to the doj and essentially play nice with them. is that actually even something that at that time in the fall after the search of mar-a-lago already happened the doj would have taken him up on? >> they very well might have. remember the old woody wood pecker cartoon if woody had gone right to the police this never would have happened and there were many points along the way where if donald trump had gone right to the national archives and records administration this would not have happened. >> so was post finding all these classified documents too late? >> the justice department can always strike an agreement to make charges go away if a defendant is now complying, making every effort to make whatever happened in the past go away then yes the justice department -- look, at that point they hadn't yet brought charges. they had simply executed a

search warrant. a lot of the basis for the indictment against donald trump was the acts of obstruction of justice along the way. yes, the point is well taken that this was well down the road that the request was made but they didn't have to charge donald trump with a crime. a lot of it was his own behavior and it could have been avoided. >> jim, you know trump very well and covered him many years inside the white house. you saw the way he was speaking last night to his supporters. we just learned from his campaign they raised $7 million since the news came down since he announced last thursday he had been told he was indicted. >> yes. the first thing, shocker, he is not listening to his lawyers. when have we heard that story before? this is a familiar pattern with donald trump. he gets into legal trouble. that legal trouble creates a spectacle and he uses the spectacle to raise money and fire up his base and that is what he is doing. that cycle will continue. i talked to a long time trump

adviser earlier this evening. he said there is no way donald trump drops out of this race. but he said, what happens with the collective weight of four different indictments? if we see two more what does the collective weight of those indictments do? if he is looking at the prospect of jail time what does he do? what i think is very interesting right now is looking at this republican field and seeing all of these candidates out there floating the possibility that they may pardon him. they are not just running for vice president these days. sounds like they are running to be his savior. so, un, this adviser was essentially saying maybe donald trump being the most transactional person we know, does he step aside in exchange for potentially a deal for a pardon from one of the other candidates. >> it is important to note not all criminal charges are created equal. what you are looking at here in this federal case is up to 20 years in prison. a very long time. very different from new york.

also the court papers didn't lay out the evidence. frankly as many people thought to the great detriment of the da's office because they didn't spell out what they were charging him with. here you have a much clearer explanation of quite serious conduct that can carry decades in prison. >> i thought that is why his speech last night was very different from the one he had given previously after being indicted was because he was listening to his lawyers a little bit. i mean that speech was vetted by lawyers. >> and it was a defense. >> it was a defense. and it was a lawyerly speech. there were a lot of inaccuracies in it but it was clearly not donald trump off the top of his head because they realize of course the severity of these charges against him. you could see it in the tone. he did say i did nothing wrong, you know, and they indicted me. you could see in the way he was

reading it that he had been put on notice. you got to stick to this script because this is getting dangerous if you say anything you shouldn't be saying. >> it is also playing to the cheap seats sort of giving a speech to a crowd across the country that simply does not understand the law in this matter. if you say the words presidential records act enough it sounds legitimate, has the veneer of legality that people sort of believe it. >> doug, republicans are trying to win back the white house and feel they have a real chance at beating president biden. is this where they want to be at this point where they are twisting themselves into pretzels talking about whether or not they would pardon the former president? >> the short answer is no. $7 million is a lot of cheap seats by the way. we see a lot of things happening here at the same time. they feel they have to rush to donald trump's defense and ultimately what they are doing when they lash out at doj or they use terms like witch hunt or things like that, weaponize, there are people running against

donald trump who are reinforcing his core message. not typically what you see when your political opponent has been indicted. what we are also starting to see is the weight of indictments. as these are coming we are starting to see some cracks. we don't know if it will cause the dam to burst but this nomination, mike pence now saying he takes these very seriously. he can't condone what's been charged. we see republicans starting to inch out a bit more. they realize at some point this nomination goes through donald trump not around him. ultimately luke skywalker has to take on darth vader. you can't depend on the force. >> it is the republican two step right now because the first step is to say that justice is not distributed equally in this country. that the fbi and justice department have been weaponized. the second step is to say, now, these are serious charges and we have to take them seriously. >> but the question donald trump has not answered is why did he

not give the documents back? if the federal government came to us and said you have documents you need too give back, we would rush down to the justice department. >> he thinks he owns them. >> he doesn't play by the rules. there as question to be asked whether or not at some point does patience run out inside the republican party? right now obviously you have to cowtow to donald trump to win a bright red district or bright red state for a senate seat. as soon as that calculus starts to change, you know, as you know, during watergate with richard nixon the republican party was right there behind richard nixon until they weren't. >> ernst hemingway said things happen very gradually and then suddenly. we are starting to see some of the gradually. it won't happen on capitol hill. it'll happen by the republican candidates who want to beat him. >> what is the argument, when you talk to other republicans what is the argument if you are someone who is like a nikki haley or someone down 40 points beneath trump, he's been twice

indicted. what is the argument for tiptoeing that? >> there is the private argument and the public argument and those conversations have always been very different when it comes to donald trump. these are very small baby steps but not insignificant. they are starting to show that they can see around the corner. this is what i tell my republican friends. if we are in the business of welcoming converts we have to welcome those steps. >> what was so interesting to me about nikki haley was when she started talking about her husband being deployed and that these are national security documents and that what the president allegedly did would put her husband at risk. i think she personalized it in a way that a lot of people can understand it because the presidential records act is this vague thing. putting troops at risk is something everyone can

understand. i think that was very affecting for her to talk about it that way. >> politicians always want to look for a permission structure. this is an example of where she can do that. >> at the end of the day donald trump is always going to do what is best for donald trump. we've all talked about, will walt nauta turn on donald trump? i think walt nauta should be worried about donald trump turning on him. there are more people underneath donald trump's bus than inside of it. and so that to me is another thing we haven't contemplated in this. >> and i'm told last night he was inside as the speech was happening not outside. thank you all for joining us with your insights. up next we'll get reaction from republicans on capitol hill and former vice president pence. they were asked about a potential pardon should he beat his old boss for the 2024 nomination. i'm joined as well by new hampshire republican governor and trump critic chris sununu. we'll ask him more about what gloria just called the republican two step.

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that you would expect. especially when it comes to the senate where trump supporters are jumping to his defense but trump critics are criticizing him and minority leader mitch mcconnell as usual on most things is staying silent as he keeps his powder dry on this issue. senator graham in the meantime very obviously ardent trump ally is warning about what he says could be coming next from the special counsel. >> if the special counsel indicts president trump in washington, d.c. for anything related to january 6th, that will be considered a major outrage by republicans because you could convict any republican of anything in washington, d.c. and i fear that is where this is going as sort of an insurance policy. >> as for the current charges former vice president mike pence weighed in on those today saying the substance of the indictment and whether he would issue a pardon if his former boss, if he

wins the white house what he would do for his former boss. >> i take the pardon authority very seriously. it is an enormously important power of someone in an executive position. and i just think it is premature to have any conversation about ta right now, guys. >> joining us now is another republican critic of the former president one we should note is staying out of the race this time. new hampshire governor chris sununu. it is about to get easier to count which republicans are not getting into this race. governor, what does it say to you about the state of your party that the twice indicted front-runner who just pleaded not guilty to 37 counts of federal charges was able to raise $7 million since he was indicted less than a week ago? >> well, look. it is unfortunately not a surprise in this day and age the kind of extremism on both sides raises money. gets people excited and people invest in the fight which is

what most of america doesn't want to see. i don't think it is a sole negative on the republican party. i think it is really an unfortunate statement on where we are with american politics, with american discourse, which is why some of us it isn't just about walking the middle line or anything. i am a strong republican and i know very strong democrats who are tired of the divisive nature and folks just trying to make another buck on the fight. >> you heard from former vice president mike pence who is obviously running. he says it is premature to talk about whether he would pardon trump but do you believe any republican candidate should rule out pardoning trump if he was to be convicted? >> look. anyone to use the line of your previous guest anyone talking about pardoning trump is doing a two step straight off a cliff. if you are a candidate running against somebody that is 40 points ahead of you if you're talking about pardoning him, you know, why he is innocent all you're doing is defending him. you are clearly not serious

about running against him. that is what am most shocked about with these candidates. donald trump is for donald trump. he stands for trump. it is all about him and his show all the time. the rest of these candidates need to separate not just themselves but the entire party. let trump deal with his issues. let the other candidates run for president with strength, with leadership, making tough decisions, calling balls and strikes like you see them even if it means understanding the evidence against the former president is likely very, very strong and if there is a conviction we've already seen what most of the evidence is, it is mostly, likely be backed by that evidence. you have to support that. the rule of law has to stand. let's just use former president trump's own words, who said that, you know, when it comes to issues like this and withholding classified documents is a disqualifier. that is what he said about hillary clinton. he said it was a disqualifier. now we're going to change the rule. it is this hypocrisy that america is absolutely exhausted of on both sides. 80% of america is tired of this.

>> you just talked about how strong the evidence you believe is here. do you think that if trump is convicted of any of these charges some of these charges that he should drop out? >> if he is convicted? yeah. he should. but what you and i think or what most of america thinks doesn't matter. donald trump does what donald trump is going to do. he is going to fight this thing to the bitter end. he is going to claim he is a victim and play that card to the end. he could get the whole nomination of it and that would absolutely blow it for the republican party in terms of turning the white house back. here if you are a republican out there and you want the department of justice completely reformed? you better make sure trump isn't the nominee because it would only ensure we don't win in november. you have to actually go to another candidate, galvanized between one or two other candidates, make this a real race about republican ideals, talk about inflation, energy independence, border security, fiscal responsibility, all of these things republicans really do believe in and galvanize around but man, we have lost that. we are so bad at screwing up our

own message within our party. we are for something very powerful, for something that independents like, the suburban moms that left us, they want to get behind. we need to get behind those issues again and stop letting donald trump dictate what our message is going to be. these candidates are all doing it. it is absolutely baffling. every single one of them is really responsible for allowing him to carry that message. they need to get together, unify on what the message is about where this country goes forward as opposed to litigating yesterday's news. >> no sign of that yet. you have said you'll support the republican nominee but can you make clear tonight if that republican nominee is trump are you still going to support the republican nominee? >> well look. my focus is if the republican nominee is trump the biggest problem we have is the ticket. because he doesn't just hurt himself because he can't win. he drags everybody else down. he will cost us senate seats, gubernatorial seats, planning

board and school board seats. that is how bad he is. it happened in 2018. it happened in 2020 when we got our clocks cleaned. we lost senate seats in 2022. he is a three-time loser when it comes to the party which is why we have to move beyond it. one of the main reasons i decided not to run for president is because i want to make sure we separate that message. that we have candidates that can stand on their own and be positive and optimistic and something really good for america in terms of what they want to bring and see. my point is trump has to kind of live on his own. it is not going to go well for him in the long run. ultimately probably not good for america because it drags down with all that negative tift. i am going to focus all my time and efforts -- >> given everything you just said in the last six or seven minutes about how clearly you are, your view of trump is and you are always very candid about that why not just say you won't, whether or not you would or would not support him if he is the nominee? it seems like a yes or no question. >> look, honestly because i

don't consider him a republican. i really don't. >> but he might be the republican nominee. >> his ideals are not founded in the republican party. >> i suppose so which is why i am going to work for real republicans and those are the folks who i'll get behind. >> you don't want to say whether or not you would support him if he is the republican nominee. >> yeah. i'm not even thinking -- i still don't think he is going to be. he could be. but it is a real hypothetical. i don't think he is going to be. one-on-one understand he loses. he might hold 45% of the vote which would be more than 2016 but he still loses one-on-one 55-45. when the republican party narrows this thing down to 1 or 2 candidates probably one, much faster than before, likely before super tuesday, and that is the responsibility of all those candidates to have the discipline to move on, he loses. that is the hope and what all our efforts and focus has to be between now and then. the more we talk about and wrap

ourselves around if he is the nominee and what happens, don't even worry about that. the next six months has to be getting the best candidate other than donald trump because that is what is best for the republican party and for america. >> well we should note that one more republican is expected to join this race the mayor of miami just growing the field even bigger. new hampshire governor sununu, thank you for your time tonight. >> thank you. up next how the biden white house is handling what no other white house has ever had to do before. the first of possibly multiple federal cases against the predecessor before them. trying vapes to quit smoking might feel like progress, but with 3x more nicotine than a pack of cigarettes - vapes increase cravings - trapping you in an endless craving loop. nicoree reduces cravings until they're gone for good.

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even before the indictment and arraignment the former president framed the federal investigation of him as a vendetta carried out by what he calls the department of injustice, quoting him there, on orders he claims are from president biden. the president and the white house by contrast have largely stayed mum on this. not entirely though. obviously there is a strategy here. it is noteworthy just how little we have heard out of the west wing on a story that is soaking up so much oxygen in washington. >> reporter: another day another no comment from the white house on this matter. i tried asking the white house press secretary earlier today simply to respond to something the former president said last night when he made the false and baseless climb that the current president essentially ordered his arrest. the response from the white house press secretary i'm simply not going to comment on this. that is indeed the strategy. they simply believe the

benefits -- risks outweigh the benefits forgive me as it relates to this situation whether to comment or fund raise off this. by contrast we've seen the first lady jill biden willing to comment. she said just a couple days ago that she found it a little bit shocking that so many republicans are sticking by the former president amid his indictment and today she said this. take yourself back in your mind. you remember how u.s. policy was dictated in those late night tweets or how about the constant assault on our most sacred institutions? our democracy and our freedoms? it is only going to get worse. that is the choice right now. chaos and corruption or you can choose strong, steady leadership. those were comments the first lady made at another fundraiser today. what evident as well is even without commenting the contrast is very much on display between the former president getting

indicted and arrested and president joe biden focused on his work and trying to show what jill biden is talking about, that strong, steady leadership. >> and still asked about his predecessor's actions along the way. thank you. for more perspective we are joined by cnn's senior political commentator david axelrod who served as senior advise tower president obama and knows what it is like behind those doors in the west wing very well. what your advice be to the white house if you were there and something this extraordinary was happening? what strategy would you take? >> i think you have to start with what strategy trump is pursuing. we are all speculating on whether this could impair his campaign. we are missing the point. this is his campaign now. he is wrapping his whole campaign around these indictments and the idea that biden and a corrupt deep state are coming after him to try and silence him because he is the avatar, the avenging angel for the alienated american who has

been shut out by this administration, abused by this administration. so it would be nuts to play that game. it would be nuts to engage in any way on these charges because what trump is trying to say is that these were politically directed charges by the white house. you know, they clearly were not. but why even lend any credence by commenting in any way? i think they are doing the right thing. >> does it get more complicated when he is on the campaign trail and this is, i mean, talking about when the court dates for trump are going to be? right now it as race between the two of them based on what the polling is in the republican party. >> yes. i think it will be a different situation in the general election right now trump, the bricks on the load being laid on

trump's wagon are not kryptonite but energy packs in the republican primary. once you get to the general election they'll weigh pretty heavy on his cart and things will change. listening to the first lady's comments where she didn't engage in the details of his situation but sort of went after those who weren't willing to speak out about it, you know, i think other democrats can do that but ultimately i think biden will benefit if people see him as someone ernestly trying to work on problems that affect their lives while the republican party and trump particularly is off on this crazy jag here. >> what about questions voters have when you see trump and other republicans saying biden did this. pence did this when it comes to documents even though they are very different situations than what the former president is facing? >> yes. well, look, i was reminded last

night, i turned to fox news to watch the president's remarks from new jersey and i turned on the tv and there was a lower third chryon saying wanna-be dictator speaks at the white house after having his political rival arrested. that gives you a sense of how polarized we are and what people are being told through the social media sources they choose to listen to. this is going to be, that is the meme that this is politically directed, that he is being held to a different standard. i will tell you i believe donald trump has lived to a different standard throughout his life but has been the beneficiary of it. he's done lots of things that others wouldn't have gotten away with. i think he is hoping to again using voters as his kind of shield here. >> the political battle versus the legal one. david axelrod as always love having you on. thank you. >> great to see you, kaitlan. still ahead tonight, home

state alabama senator tommy tuberville is the sole person now responsible for holding up about 250 military promotions even as he is facing pressure not just from democrats, even within his own party to back off. why he is doing it and what iraq war veteran and illinois senator tammy duckworth has to say about it. she'll join us next. starting with the e sound system... curry from deep. [autotune] that's caaaaaaaaash. i prefer the old intro! this is much better! i don't think so! steph, one more thing... the team owner gets five minutes a game. cash bros? wooooo, i like it! i'll break it to klay. cashback like a pro with chase freedom unlimited. how do you cashback? chase, make more of what's yours. our heritage is ingrained in our skin. and even when we metamorphosize into our new evolved form, we carry that spirit with .

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republican alabama senator tommy tuberville is standing firm on his commitment to hold up hundreds of promotions in the military even as he is facing growing criticism for doing so. tuberville says the hold is going to stay until the senate votes on a pentagon policy that ensures service members have access to reproductive healthcare after the supreme court overturned roe vs. wade. cnn's manu raju caught up with the senator today and asked if he was worried about whether pentagon officials say the backlog could impact military readiness. this is what he said. >> i've talked to generals and admirals and if i felt it was that much of a problem we wouldn't be having this. it is not affecting it. we could do three or four a day if they are really that concerned but nobody is concerned about it. so why would i be concerned about it? >> joining me now, democratic illinois senator tammy duckworth a member of the armed services

committee and iraq war combat veteran. good evening, senator. thank you for being here. you heard what your colleague said there telling manu no one is concerned about it and that if you reel ally had an issue y could do three or four a day which would take an incredible amount of time. way is your response? >> perhaps he has not read the letter from the seven former secretaries of defense that said that he is endangering national security by doing this. he is inserting a social agenda, political process into something that has never been political. promoting military officers based on their merits and ability to perform their jobs and defend our nation and it is really shameful he is doing this and he is doing it for political gain. it has never been done and really is endangering our national security. >> is it clear to you what he wants for how this to end? clearly what he doesn't like is the policy that the pentagon has

put in place for service members to be able to travel. but if he gives up on that position he'll look like he lost. as you noted he has gotten some praise from his own party about it. if democrats or the administration gives in, it would just be rewarding his tactics. how does this come to an end? >> he has been given several opportunities. the best way is through the legislative process. next week we are actually doing the mark up on the national defense authorization act. that is where he should be going through the process. he can put forward a piece of legislation that would would counter this dod policy. we would vote on it. it passes or fails. he doesn't want to do that. senator joanie ernst has legislation that negates this. even within his own party he is given options, off ramps that would allow him to get the vote. but bottom line he is getting too much benefit from this whether it is his own political

status or by the way he is fundraising off of this, or an action endangering our national security. it is really shameful. >> senator joanie ernst i should note has worked on that for a while and effectively achieved the same outcome but through the legislative process. tonight critics may look at this and hear this interview and remember when you also vowed to block the promotion animation of more than a thousand or so military promotions. you wanted the pentagon to guarantee lieutenant colonel alex vindman would get his promotion and it wouldn't be blocked. that was only two weeks. you what would you say to those critics if they drew the distinction tonight? >> what i did is what senators do all the time and usually it is for a particular goal which is to get an answer to a question. i received my answer.

the pentagon had nominated alexander vindman to be promoted along with other officers based on the ability to do his job and the white house pulled him out of his cohort to say we are not going to promote this person though he had been recommended for the promotion. i wanted to know why. i said okay. i'm going to hold these until you answer me and they did and i took down the hold within 14 days. we are not talking about six months. we are not talking about endangering national security long term, certainly not talking about fundraising off of such a move which is what my colleague is doing and certainly it wasn't to insert a social agenda the way he is doing into national security. >> senator tammy duckworth thank you for your time tonight. coming up a remarkable return to the headlines of the federal judge who derailed the trump documents investigation only briefly until an appeals court weighed in including two other trump appointed judges i should note that issued a legal

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among the many improbable turns in the government's case against the former president is that judge aileen canon is assigned to it. she initially stepped in if you remember her name after the fbi search of mar-a-lago last august, she slowed the investigation essentially to a crawl until a federal appeals panel sharply overruled her. joining us now harvard law school senior lecturer and former federal judge nancy gertner. thank you for being here tonight. even the trump team i should say people i've spoken with are surprised judge canon seems like she's going to be the one taking this to trial. she's only been on the bench since late 2020. she has zero experience as a judge prior to that. when you look at that, do you believe she has enough experience for a trial of this magnitude? >> you have to step back. no one has enough experience for a trial of this magnitude. n nobody has any experience with this because it's completely unprecedented. no question about it she comes

to the table with less trial experience, and what that's going to mean is that there will -- things will be slower unless she's doing it purposely because in the pretrial stage she'll be trying to figure out what to do. one of the things about having trial experience is during trials you make decisions immediately. you are people waiting there, jurors, and you have lawyers waiting for a ruling, and that's where the difference could be. but who knows how this will turn out. as i said this is going to be unprecedented from beginning to end. >> yeah, it's an incredibly complex case. i'm glad you made that point. judge canon did come under fire last year for suggesting in rulings i should note were overturned in pretty embarrassing fashion for a judge, essentially that trump should get special protections given he's a former president. the others would not in a situation like this. when you look at, do you believe she has a duty to recuse herself because of that? >> well, i think -- i think it's

a way more complicated question. does she have a duty to recuse herself? no. because it wasn't that they said, that the appeals court said you're biased. the appeals court said you screwed up, the language they used was you screwed up mightily. i don't think there's a duty because that ruling didn't necessarily connote the appearance of bias. would it be -- would it be better and fairer were she to do that? that's a different issue. do i think that jack smith will move to recuse her? this is now completely speculative but my answer is no. because imagine this, kaitlan, imagine if there's a trial and conviction before a trump appointed judge, the legitimacy of that proceeding would be unquestioned even by trump who can question anything. so i don't know whether they would move. the fact she was appointed by trump is not a basis to recuse

her. and even the overturning of her rulings even in this thunder s way is really not a basis to accuse her either. >> that's a good point. they didn't say she was biased. they just argued she was wrong. it is remarkable this happened, that she did get this. of course they said it was a random selection basically. judge gertner obviously will be watching closely to see what this looks like going forward as she is the judge overseeing this very complex case, complex trial going forward. judge gertner, thank you for your expertise on this tonight. >> you're welcome. up next on cnn, arnold shwarzenegger is weighing in on donald trump's indictment for the first time. "cnn tonight" with abby philips is next right after a short break. fresh beanans for you. oh, genius! for more breakthroughs like that... ...i need a breakthrough card... like ours! with 2.5% cash back on purchases of $5,000 or more... plus unlimited 2% cash back on all other purchases!

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