project to take us off the air tonight. that is our broadcast for this tuesday evening. thank you for spending this time with us. on behalf of all my colleagues at nbc news, good night. things are moving very fast now. i'm not sure that even yesterday at this time when i was talking to you here on this bat channel at this bat time. i don't think even yesterday i could have imagined that i would be telling you tonight what i am about to tell you. but here are the facts. here's where we are. tonight the house of representatives is voting on a resolution to urge mike pence to act in accordance with the 25th amendment to the constitution to urge a majority of the trump cabinet to vote with him to remove president trump from office. now, this 25th amendment resolution in the house will pass. vice president pence is not

expected to go along with that imploring resolution from the house, even though the president sicced an angry mob on him a week ago, that tried to hunt the vice president down and kill him. at least that's what they said in their own words they were going to do. the president tonight, excuse me, the vice president tonight made public this letter to nancy pelosi telling her formally that he will not take that route. that he doesn't support the 25th amendment path here regardless of what the house passes. what's next? well, the rules committee in the house is expected to take another vote tonight. separate and apart from all this 25th amendment stuff. they will vote to put an article of impeachment against president trump on the house floor for a vote sometime tomorrow. and here's what was sort of unimaginable about this, even just 24 hours ago. we have now started to see house republicans come out and say they will vote with democrats tomorrow to impeach president trump again.

republican congressman john katko of new york was the first to say he would support impeachment saying in part, we take oaths to defend the constitution because at times, the constitution needs to be defended. without the peaceful transfer of power and the acknowledgement of election results, we can't sustain our political system. congress is tasked with holding the executive accountable. to allow the president of the united states to incite this attack without consequence is a direct threat to the future of our democracy. for that reason i cannot sit by without taking action. i will vote to impeach the president. republican john katko. after him it was, liz cheney of wyoming. of course the daughter of the hardline right wing dick cheney, vice president to president george w. bush. her statement was even more blunt than what we got from congressman katko.

she said on january 6th, a violent mob attacked the u.s. capitol to obstruct the process of our democracy and to stop the counting of presidential electoral votes. this insurrection caused injury, death, and destruction in the most sacred space in our republic. much more will become clear in coming days and weeks but what we know now is enough. the president of the united states summoned this mob, he assembled this mob, and he lit the flame of this attack. everything that followed was his doing. none of this would have happened without the president. the president could have immediately and forcefully intervened to stop the violence and he did not. she concludes, there has never been a greater betrayal by a president of his office and his oath to the constitution. i will vote to impeach the president. that's the statement from liz cheney, the number three republican in the house republican leadership. since then, the republican congressman adam kinzinger has said he will vote to impeach the president.

republican congressman kinzinger of illinois. there may yet be more. but even those three are news, right? the first time trump was impeached a year ago, not a single republican in the house voted with democrats to support that impeachment, for him trying to force a foreign country to intervene in the 2020 election. but this time for the second impeachment it will be a bipartisan impeachment vote in the house. it is a near certainty that donald trump will be the first president ever to be impeached twice. that will happen tomorrow. now it is a legitimately open question as to whether he will also be the first u.s. president he to not only be impeached in the house but to also be convicted in the u.s. senate and thereby removed from office. 24 hours ago, i would not have told you under any circumstances that i thought this would be a live question. but apparently this is a live question now. just remarkable news tonight. "the new york times" first to

report and cnn soon matched the reporting, "the new york times" is the first to report the top republican, mitch mcconnell, in some sense of the word, is supportive of the impeachment effort against president trump. here's how "the times" phrased it. this report from jonathan martin and maggie haberman. quote, senator mitch mcconnell of kentucky, the republican leader, has told associates that he believes president trump committed impeachable offenses. and he's pleased that democrats are moving to impeach him. and he believes it will make it easier to purge trump from the party. mr. mcconnell has indicated that he wants to see the specific article of impeachment, the house is set to approve on wednesday, and he wants to hear the eventual arguments in the senate. but the senate republican leader has made clear in private discussions that he believes now is the moment to move on from the weakened lame duck president whom he blames for causing republicans to lose the senate. cnn adds this characterization about mcconnell's thinking.

quote, mcconnell has made no commitments on voting to convict trump but his silence on impeachment has been deliberate as he leaves open the option of supporting impeachment conviction and removal from office. you'll remember that mitch mcconnell last time around not only voted against convicting trump, the last time the house impeached him. the only republican who voted to convict a year ago was mitt romney. but mcconnell was not only a no vote. he was vociferously and loudly against those impeachment proceedings even started. by the time impeachment had made it through house and got to the senate, mcconnell didn't allow any witnesses to testify. essentially didn't allow a real senate trial to happen. basically blocked the whole thing. this time if this new reporting is accurate, mcconnell is kind of down with it. if mitch mcconnell supports the impeachment effort, that raises the prospect that there may very well be enough votes in the united states senate to convict

president trump and remove him from office. which would be the first time that has happened to any president in u.s. history. if most or all of the senate democrats are going to vote to convict president trump, republicans would need about a dozen and a half of their senators to vote to convict if all senators were present for the vote. or alternatively, republicans would need about 20-ish of their senators to stay away from the vote. to not participate in the vote one way or the other. in that case, maybe only a handful, maybe only five or six would be needed to vote with democrats for trump's conviction. now, is that feasible? could it really happen? again, 24 hours ago i would have not even entertained the question. but look at this. there are two bylined reporters on this story.

jonathan martin and maggie haberman. tonight jonathan tweeted this. a senate republican aide tells me he thinks there were about 20 give or take republicans, meaning republican senators, who were open to a conviction of president trump. and that was before our story on mcconnell. and again, the story on mcconnell is that he is positively inclined toward this impeachment effort against the president. so i guess this is a live question. if the senate does vote -- the house is going to vote to impeach president trump tomorrow. that will happen. if thereafter the senate votes to convict president trump, if that happens while trump is still in office, the effect of the vote to convict him will be to remove him from office. vice president mike pence will become the next president of the united states. that will make joe biden the 47th, not the 46th president of the united states, even if mike pence only serves for five minutes. now, can a president be impeached after he's left office?

arguable question, lots of legal scholars on both sides weighing in. but let's say the conviction of donald trump on impeachment charges happens after the inauguration. let's say they do pursue it in the senate but it happens after trump leaves office. even in that circumstance, the conviction of president trump in the senate would be followed by another vote, and the subsequent vote after they voted to convict him in the senate would be on whether president trump should be permanently banned from ever holding federal office again. that vote would follow immediately, the two-thirds vote in the senate to convict him. but that vote on banning him from public office, that would only take a simple majority of senators to pass. that would likely pass. so one of the things we'll be looking at tonight is the timing. if he so chose, if this reporting is right and senator mcconnell really does think

donald trump is a clear and present danger to the republic and the republican party needs to make a clean break with him, that this is the moment, if that reporting is accurate and mcconnell wants to put his money where his mouth is, it is within his power to act against the president right now. as we discussed on last night's show, a little known rule passed after 9/11 says if mcconnell just agrees with the democratic leader in the senate, chuck schumer, if just the two of them agree these are extraordinary circumstances that warrant pulling the senate back into session to handle this matter, just those two senators can decide to do that. so that a senate impeachment trial could start while president trump was still in office so he could be removed upon his conviction by two-thirds of the senate. senator schumer reiterated today, that is what he wants to do with mcconnell. he is ready to call the senate back in session to do this. there is no word tonight whether or not mcconnell likes that idea, whether or not he will make that move.

but another thing we'll be talking about tonight is a sort of corollary to the charge on which trump is likely to be impeached tomorrow in the house. we've been talking the last two nights, the way the article of impeachment is written, it seems the reference a section of the 14th amendment to the constitution. part of the amendment that says anybody who participates in insurrection or rebellion against the united states, anyone who gives aid and comfort to those who do can never again hold public office in the united states. so that is turning into a sort of legal touchstone for what trump is about to be impeached for. it might also be a sort of backstop to the impeachment plan. as i said, trump will be impeached in the house tomorrow. that will be historic in itself. after, he very well may be convicted and removed from office by the senate. we'll see. the ball is in your court, mr. mcconnell. but if president trump doesn't get convicted in the senate, the

congress arguably could essentially just vote by a majority vote to find that president trump's role in this insurrection renders him banned from further public office for life because of that provision in the 14th amendment of the constitution. legal scholars are now arguing that the congress could do such a thing, could invoke the 14th amendment that way with or without the president being convicted in the senate. and that could roll up on us fast as well. coming up, we'll talk with one of the legal scholars who has been laying out the road map for doing just that. but all of these things are happening in a rush, right? the strands of news developments are sort of twining together. the aftermath, the reaction, the repercussions to the trump mob attack on the capitol this week is bringing some of these threads into a single cord. or maybe it's a fuse. they're all coming together and they're all being pursued all at once. for example, late today we got

an extraordinary statement from the top uniformed military leadership of the united states. a statement signed by the chairman of the joint chiefs, commandant of the marine corps, chief of naval operations, the chief of staff of the air force, chief of space operations, because that's a thing now, the chief of the national guard bureau, they all personally signed on to this statement. and what got the most attention was its existence, right? uniformed military does not do anything even politics adjacent if they can help it. let alone a statement like this. but the statement clearly and but the statement clearly and unequivocally states that the election is over and biden won. quote, on january 20th, 2021, in accordance with the constitution, confirmed by the states and the courts, and certified by congress, president-elect biden will be inaugurated and will become our 46th commander in chief. the statement sort of tries to put to rest any threat or worry that the military might be

somehow ordered by trump to stop the inauguration of biden. to keep him in power somehow. they say that they will obey lawful orders from civilian leadership and that they remain fully committed to protecting and defending the constitution of the united states against all enemies foreign and domestic. they say, we support and defend the constitution. any act to disrupt the constitutional process is not only against our traditions and values and oath, it is against the law. meaning, any order to disrupt our constitutional processes would be an unlawful order. but then there is this. and this didn't get as much attention today in this statement from the military services chiefs. but i think this is important. this language is important. the violent riot in washington, d.c., on january 6th, quote, we witnessed actions inside the

capitol building that were inconsistent with the rule of law. the rights of freedom of speech and assembly do not give anyone the right to resort to violence, sedition, and insurrection. sedition and insurrection. insurrection. why is that ringing a bell? because as we just discussed, that's what the 14th amendment talks about. participating in an insurrection? giving aid comfort? that makes you disqualified from ever holding public office again in the united states. that is what the military says happened here. that is the title of the trump impeachment article. incitement of insurrection. it's also a federal crime with a very long prison sentence associated with it. what's the u.s. military says that was and we have that trump mob at the capitol. violence, sedition, insurrection. impeachable offenses.

offenses that bar from you ever holding public office. and that sentence you to long, long prison terms. that's what the military says happened here. today the top federal prosecutor in d.c. finally gave a public briefing on arrests and prosecutions since the arrest on the capitol along with a local fbi official for d.c. who didn't say anything very specific. lots of questions as to why these two essentially local officials for d.c. are the only people talking to the public. why the fbi director chris wray and acting attorney general rosen still haven't shown their faces or said anything on camera since the capitol attack. but we did learn from this u.s. attorney today, he says in prosecuting people who took part in this attack, they set up a task force of prosecutors specifically to pursue, what is that word? sedition. sedition charges. sedition is a 20-year felony for what amounts to an effort to overthrow or oppose the u.s.

government by force. >> just yesterday, our office organized a strike force of very senior national security prosecutors and public corruption prosecutors. their only marching orders from me are to build seditious and conspiracy charges to the most heinous things that happened in the capitol. these are significant charges that have felonies with prison terms of up to 20 years. >> to the very top of what he said there. just yesterday our office organized a strike force of very senior national security prosecutors and public corruption prosecutors. marching orders for me are to -- national security and public corruption prosecutors. to build sedition cases in conjunction with the attack on the capitol. why would you need public corruption prosecutors for that? by definition, public corruption

prosecutors pursue crimes by public officials. public officials looking at sedition charges? conjunction with the attack on the capitol? i mean, i don't know what's going through the president's head right now. i don't know if he is truly considering resignation, what he thinks about the fact he is definitely going to become the only u.s. president ever impeached twice, and that will happen tomorrow. but mr. president, i mean, he has to be learning something, right? mr. president, what did you think was going to happen? did you think it would work? did you think that if you got enough violent and potentially armed supporters of yours into the capitol while the congress was there, and they did what

they were there to do, what kind of power did you think you would hold? what way did you think would you benefit from that? what did you think would be happening now five days out? mr. president, if you incite an angry mob to go attack the u.s. capitol while congress is sitting, you get them to go attack the capitol because you tell them if they go to the capitol, they will be able to accomplish somehow keeping you in power and stopping election results from being processed. mr. president, if do you that, you will face calls to be removed from office as unfit to serve under the 25th amendment. you will also invite certain impeachment and potentially conviction and removal from office. the first u.s. president to ever go through that. mr. president, you will invite the invocation of the 14th amendment to ban you from ever holding public office again in the united states, like the confederate traitors before you for whom that provision of the 14th amendment was written. and yes, mr. president, you may in fact invite criminal charges in washington, d.c.

and you may invite criminal charges at the federal level for inciting a violent attack against the u.s. government, which would put you in prison for decades. all of this can be yours for the low, low price of what you did after you lost the election to joe biden. what did you think would happen? did you think it would work? did you think you would hold power with the support of a private army, with their hockey sticks and their ar-15s? maybe the military would flip and become your praetorian guard? is that what you thought would happen? tonight, more of the cost of the president's actions are becoming known. as the house started to debate the 25th amendment resolution, the congresswoman of pennsylvania described more that we had not previously known about what the trump mob did when they launched this attack. >> they were here to take the law into their own hands to disrupt congress as it counted

the electoral college votes, and to overturn the lawful election of joseph biden as the 46th president, as violent invaders broke windows and rammed doors, they chanted that they wanted to hang the vice president and kidnap the speaker of the house and they brought the tools to do it. they beat one police officer to death, tased others, and tried to shoot one with his own gun. another officer will likely lose an eye. scores of others suffered head injuries when they were beaten with pipes. blood was spilled on the marble floor just outside this room. >> some of these details were not known before congresswoman scanlon described them on the house floor tonight. police officers beaten over the head with pipes. one officer who will lose an eye. some officers who were shot with tasers. one officer was shot at with his own gun. we didn't know those details before the congresswoman disclosed them tonight on the floor.

and those revelations come as that as members of the house, democratic members of the house last night. republican members of the house today. members of the senate this afternoon, started getting safety briefings about what the president's supporters are planning in terms of attacking the inauguration next week. "huffington post" was first to report on the police briefings to lawmakers. saying in part that the lawmakers were told about one demonstration which three members said was by far the most concerning plot that would involve insurrection. forming a perimeter around the capitol and the white house and the supreme court and then blocking democrats from entering the capitol, perhaps even killing them, so that republicans could take control of the government. house democrats were given that security briefing by police yesterday. house republicans and senators were briefed today. nbc news now reports that part of the briefing all the members have received is a reminder that each member of congress is allowed to use congressional funds to pay for expenses incurred to physically protect that member of congress.

specifically, all members of congress are now being advised that if they purchase a bullet-proof vest, that will be viewed as a reimbursable expense for that person. is getting a lot of conservative judges confirmed worth it? are you okay with how this is all working out in the end? three democratic members of congress have now tested positive for covid-19 after being confined in the same room for hours as they hid from the trump mob. alongside republican members of congress who refused their requests, even in that room, to put on masks. congressman schneider of illinois, representative jayapal of washington, and congresswoman bonnie watson coleman now has covid-19 after surviving cancer. all three were in the same room with maskless republicans during the capitol siege.

a senior republican staffer on the house armed services committee resigned with a statement that excoriated the republican members of the house who encouraged rioters and who voted and endorsed trump's lies. the communications director for senator ted cruz resigned today as well. as more and more democrats in the senate have called for senator cruz and senator hawley to either resign or be expelled for their central and now unrepentant role in encouraging these conspiratorial lies about the election result. we don't know what will happen next. we don't know what will happen next even tonight but republican members of congress are reportedly refusing to go through the new metal detector that has been installed outside the house floor. that includes one new republican member who has promised to carry a gun with her at her new job at the capitol. that's happening tonight. it's a live question as to whether republican members of congress who openly supported

those who attacked the capitol might themselves have brought guns on to the house floor tonight as the house gathers to vote on this 25th amendment constitution. it's a live question tonight as to whether the conviction of president trump might actually happen in the u.s. senate. either by a dozen and a half republicans voting with democrats to convict him, or just five or six voting to convict and another 20 or so republicans agreeing to stay home and not take part in the vote. all live questions tonight. what is not a live question tonight but is instead live motion that we are watching tonight and tomorrow. we are watching it happen as history, this is the first president ever to be impeached twice. it was on the precipice of impeachment like this, facing certain impeachment in the house and probable removal in the senate that republicans in august, 1974, marched up to the white house and told president richard nixon that his time on the stage was up. and nixon resigned.

wouldn't you know it, his vice president saw fit to immediately then pardon him for his crimes after that resignation and so nixon never set foot in prison. i don't know if this breed of republicans we have now is going to do that for president trump. i don't know if they would see him or listen to him if they did. but if i were trump, i would resign tonight. i would resign tonight because if i were trump, i think i would be terrified of the consequences of what i have done in the past week. i would be terrified of going to prison. and i would want that pardon and i would be damn sure that mike pence would give to it me in exchange for my resignation. that's what i would do if i were him. lord knows what he will do. anything remains possible. and he's still president. lots to get to tonight. stay with us. it was kind of a shock after i started cosentyx. four years clear. real people with psoriasis look and feel better with cosentyx.

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♪ ♪ 2020's done a new era has begun so keep pushing forward... because this is twenty twenty won make a different future start different at godaddy.com businesses today are looking to tomorrow. adapting. innovating. setting the course. but new ways of working demand a new type of network. one that's more than just fast. you need flexibility—

to work from anywhere and manage from everywhere. advanced technology. with serious security. and reliable coverage, nationwide. forward-thinking enterprises deserve forward-thinking solutions. and that's what we deliver. so bounce forward, with comcast business. so as i said at the top of the show, things are moving really fast and we're not exactly sure how the news will evolve.

just in the last couple of minutes since i've been on the air, we've received unconfirmed reports that a fourth member of congress, fred upton of michigan, may be a yes vote on impeachment when impeachment comes up to the house floor tomorrow. again, as i explained earlier, in the first impeachment of president trump, there were no republican votes in the house to impeach him. just tonight, if this report about fred upton is correct, and we have not yet confirmed it. that would make four house republicans who are going to vote with democrats to impeach president trump. and we're following this bombshell reporting first from "the new york times" and also from cnn that republican senate leader mitch mcconnell may also be in support of impeachment efforts, which raises the live prospect that the president will not only be impeached in the house tomorrow, he will be convicted in the senate. if of course that happens before the inauguration, that conviction would have the effect of forcibly removing him from office. i should also tell that you late

tonight just within this past hour, the democratic leadership in the house has unveiled this list of nine democratic congressmen and women they've assigned to basically run the proceedings in the senate trial if the president is indeed impeached tomorrow. these will be the house impeachment managers who essentially prosecute the president before the senate. the list that we just got includes congressman jamie raskin of maryland, congressman degett from rhode island, joaquin castro of texas, eric swalwell, ted lieu, stacey plaskett, joe neguse, and madeline dean. those house managers were just named tonight by the democratic house leadership. joining me now, hakeem jeffries,

chairman of the democratic caucus. he of course was impeachment manager in the first impeachment trial, he is a senior member of the leadership. congressman jeffries, nice to see you. thank you for being here tonight. >> great to be with you. >> i've been trying to keep our viewers up to date, as up to the minute as i can on proceedings and what is happening in congress and what is expected to happen. is there anything that has evolved late tonight that we should know about? what expectations should we set or do you and your colleagues want to set in terms of what people will see happen late tonight and tomorrow? >> we are moving forward with the fierce urgency of now to bring about one singular objective, to make sure that donald trump is removed from office expeditiously because he is a clear and present danger to the health, safety, and well being of the american people. we've indicated all along that we'll continue to press forward and strongly pushing the vice

president and the cabinet to do the right thing, invoke the 25th amendment, and declare donald trump no longer fit to serve in office. so we'll pass that resolution tonight. and i expect, rachel, that it will be bipartisan in nature. tomorrow, we will proceed to pass the article of impeachment charging donald trump with the incitement of a violent insurrection and attack on the capitol that left five people dead including the murder of a police officer, police officers beaten with pipes and flag poles and maced and tased and had their spray used on them. offices ransacked. the capitol desecrated, urine and feces left behind. all encouraged and incited by the big lie that donald trump told that he won the election. >> congressman jeffries, i've

been rocked back a little bit by this reporting from "the new york times" that mitch mcconnell is broadly supportive of the impeachment efforts. he's at least happy that this is being pursued in the house. i have to ask you, given the reporting that senator mcconnell is open to himself voting to convict the president. that that raises questions as to how quickly he would move for a senate trial. but he wants to see the article of impeachment first. he wants to hear the arguments about it. is there any bicameral negotiation going on? is speaker pelosi or anybody else from democratic leadership, even democrats in the senate who you may know of, who are in communication with senator mcconnell to get him to a place, get him to someplace where he would be comfortable with the articles as presented, and with potentially organizing a vote to convict and remove? >> i do believe that some of my house colleagues including a few who have already indicated that

they plan to vote yes on the article of impeachment tomorrow have been in communication with some of their senate republican colleagues to discuss the urgent need to deal with this situation. every minute, every hour, every day that donald trump remains in office, he's an existential threat to our way of life. that was demonstrated in clear ways on january 6th. so it's not surprising to me, rachel, that the momentum continues to build to do the right thing. and i hope that more of my house republican colleagues will leave behind their sycophantic ways. many of them have enabled this, bringing to us this point. i encourage them to join team democracy and abandon team sedition. i do think those conversations are taking place and are rapidly escalating. >> should we expect that the article of impeachment itself may change?

that it may be revised or essentially changed to accommodate republican concerns to try to make the senate more likely to convict? or should we see the article of impeachment that has been circulated as of yesterday, should we see it as final draft? >> it's my expectation that is the article that will be on the house floor. in consultation with great leadership from the speaker have done a tremendous job in crafting that singular article. you know, donald trump is a living, breathing impeachable offense on his own. and his words speak for themselves. he launched in many ways this attack on the capitol that was so deadly, that violated everything that the united states stands for in terms of the rule of law and the peaceful transfer of power. so i think it has been done in a way that should appeal broadly,

not to democrats and republicans, but to americans and to patriots and to those who care about our great country. >> congressman hakeem jeffries, the chairman of the democratic caucus, was an impeachment manager in the first impeachment of donald trump. the new slate of impeachment managers for the second impeachment of the president just announced tonight. sir, thank you for helping us understand what's going on. i know things are moving fast right now. >> thank you, rachel. all right. we've got lots more to come as this developing story continues to evolve. again tonight, the house is voting on an amendment, excuse me, a resolution to call for vice president pence to invoke the 25th amendment to remove the president from power. vice president pence says he will not do that. he has put in it writing. but the next order of business will be to put the article of impeachment against president trump on the house floor. we expect that vote to be sometime tomorrow. the whole process rocked tonight

by reporting first in "the new york times" that indeed the house -- excuse me, the senate republican leader mitch mcconnell is broadly supportive of the impeachment effort against president trump, raising the prospect that following the house impeachment vote tomorrow, there will be a vote in the senate to convict president and remove him from office. we're following all those developments as closely as we can. we have more ahead next. stay with us. we'll get your taxes done right, guaranteed. ♪♪

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when house speaker nancy pelosi wrote to colleagues on sunday, she ended by soliciting her colleagues' views on the 25th amendment and on impeachment but also on the 14th amendment section three. what's that? well, the authors of the article of impeachment have gone out of their way to root the article of impeachment in that part of constitution. in the final version of the one article of impeachment for incitement of insurrection which

the house will vote on tomorrow, the authors added this. quote, section three of the 14th amendment prohibits any person who has engaged in insurrection or rebellion against the united states from holding any office. in his conduct while president of the united states, donald john trump engaged in high crimes and misdemeanors by inciting insurrection. so this is this very simple, very explicit formula from house democrats here rooted in this one part of constitution. the constitution says you can't hold office if you've engaged in insurrection against the u.s. government. they say donald trump has plainly incited insurrection against the u.s. government. that's a federal crime. that brings with it a big prison sentence. it is an impeachable offense that should warrant removal from office, sure, but it also, as a standalone matter per the constitution, earns you a lifetime ban from holding office.

ergo donald trump can never again hold office. so this part of the constitution is the legal reference point for the impeachment article. we need to understand what that means, given that impeachment is going ahead. here's my question. is it also a potential plan "b"? if the house, let's say, is able to impeach trump tomorrow, it looks like they'll have the votes to do that. let's say the senate even with mitch mcconnell on board, let's say they still don't convict him. in that case, could the 14th amendment of the constitution, this section of it, be invoked regardless of the outcome of impeachment to keep donald trump from ever holding office again? our next guest suggests the answer is yes. joining us now is celebrated appellate lawyer deepak gupta, a lecturer at harvard law school, and the author of this piece in "the new york times"

saying impeachment isn't the only option against trump. thank you for making the time. >> thanks for having me. >> i'll not a lawyer and i'll not even all that good -- sorry. go ahead. i didn't mean to interrupt. >> i was going to say the last time we were here we were talking about the emoluments clause. now we're here to talk about another obscure provision of the constitution, which is just great. >> well, obscure provisions of the constitution, whether or not we have a president who keeps tripping over them. if you are not a lawyer like me, i feel like it is folly to try to explain them or talk about implementing them in detail. so i am sure that i have explained something wrong about the 14th amendment, section three, and its potential application to this circumstance. i want to start by asking you to correct whatever i've inevitably gotten wrong here. >> i think you got it just right. and i do think that this provision is not a substitute for impeachment. we should pursue impeachment.

but it is a potential plan "b" and it is kind of the, it is in the articles now. so it is going to be the basis for impeachment. and this was not a provision in the original constitution. it was something that was added after the civil war. and the objective was simple. the framers of the 14th amendment, one of the post civil war amendments, wanted to make sure that if you had sworn an oath to support and defend the u.s. constitution and instead you participated in the confederacy, you participated in insurrections or rebellions against the constitution, you lost your right to hold federal office. and, you know, it's amazing that there is this provision in the constitution that is directly applicable to what just happened which is people engaging, inciting an insurrection on the capitol to obstruct a lawful process, the counting of votes, and i think donald trump has violated the 14th amendment.

and now the question is, how will we make sure that's enforced? >> yeah. and the enforcement of this is really the key. as you are explaining that, i just thought of something for the first time that i just want to ask you about. we don't know exactly what the mechanism is for enforcing this. presumably if congress made clear that they believed certain actions were violations of the 14th amendment, and thereby render people who committed those actions banned from public office, if that person in the future filed to run for public office, there would be an actionable thing in court. a judge could decide whether or not in fact the 14th amendment barred that person from running. would that be set in motion just by the house impeaching him successfully tomorrow, having declared his alleged crimes to be something that invoked this part of the constitution? >> well, i think if i were a

judge and that case came before me, i would give a lot of weight to the fact the house said that. but i would still have to decide. that wouldn't bind me. so the question is, you know, what can we do to make it as easy as possible, if, let's say, we don't get a conviction in the senate, to ensure that donald trump is disqualified. and i think the roadmap is kind of set out by what happened after the civil war. after the 14th amendment, congress passed a law called the first ku klux klan act that allowed the enforcement of section 3 of the 14th amendment. what congress can do now is pass another law. under section 5 of the 14th amendment, congress is allowed to pass laws to implement other provisions of the 14th amendment. so they pass a law and it says, look, if you incited an insurrection, engaged an insurrection, directed an insurrection, you're

disqualified from holding federal office. it can set up procedures to have those cases heard in federal courts or by election administration officials and i think if congress does that it will be an insurance policy to prevent donald trump from appearing on the ballot but also to ensure that other people that had a central role in this insurrection don't show up as public officials in the future. >> deepak gupta, lecturer at harvard law school. the author of this piece today. "impeachment isn't the only option against trump." professor, it's good to have you here tonight. thanks for making this clear. >> thanks for having me. it was great. all right. we've got more ahead tonight. stay with us. your fairy godmother alice. and long-lasting gain scent beads. part of the irresistible scent collection from gain!

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even after multiple touches. try microban 24. this has been medifacts for microban 24. as i mentioned, the news tonight is continuing to develop in ways that we're just sort of trying to keep track of as it happens. i mentioned at the top of the show that there were three republican members of congress who said they were planning to vote yes to support the impeachment of president trump tomorrow. john katko of new york, congresswoman liz cheney of

wyoming, and adam kinzinger of illinois. since we've been on the air, i mentioned that there were reports that congressman, republican congressman fred upton of michigan will also be a fourth member of the republican caucus who's planning on joining in the vote to impeach president trump. again, nbc news has not yet confirmed that, but i will tell you that both reuters and "the wall street journal" are confirming it tonight. so it does seem like multiple news outlets are confirming fred upton will be a fourth impeachment vote. there's also been some news that representative peter myer, who's a michigan congressman, he said tonight that he would not support the 25th amendment resolution but raise the possibility that he might be a yes vote on impeachment. so we're watching him as a potential fifth vote as well. it's all developing very fast. we'll stay on it.

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so when you're away, you don't have to worry. the tent. we forgot... the tent. except about that. xfinity home. simple. easy. awesome. hey look, i found the tent! get xfinity home with no term contract required. click or call today. the house is set to convene tomorrow, 9:00 a.m. eastern, to consider making donald trump the first president in history to be impeached twice. right now, we are expecting the impeachment vote to happen some time in the afternoon but things are very fluid. that could change. keep an eye out for whether or not there are negotiations between the house and the senate and even between democrats and republicans that are designed to get the articles of impeachment or the article of impeachment to a place where republican senators may feel comfortable voting to convict. senator mitch mcconnell, the

reporting about him tonight suggesting that that may be a live possibility i think means this is more fluid than ever. set your alarms. eat a good breakfast. see you again tomorrow night. it's time for "the last word with lawrence o'donnell." good evening, lawrence. >> good evening, rachel. of course, the invasion of the capitol was also a superspreader event including, apparently, in the safe room where they were holding members of the house of representatives. we're going to be joined tonight by 75-year-old congresswoman bonnie watson coleman who now has covid-19 because she was in that room with those republican members who were refusing to wear masks. blatantly refusing to do it. she's been protecting herself very, very carefully. she's going to join us this hour. also congressman eric swalwell. he's now appointed a house manager in the second impeachment trial of donald trump. and i've been thinking about this tonight, rachel, we saw so much expertise in the first

impeachment investigation of donald trump.