good day, everyone. i'm andrea mitchell in washington with my colleague chris jansing for the next four hours as the nation prepares for what could be the most momentous challenge to american democracy since its founding, the ordinarily transfer of presidential power in question, with this indictment, donald trump facing his most important legal test, charges that he conspired to overturn a free and fair election that he had lost and with his co-conspirators welcomed violence to achieve his goal. >> this will be his third arraignment in four months. we are a few blocks away from the federal courthouse with an unprecedented security presence both outside and inside that building at this hour. it's where the former president will arrive this afternoon for what is now a familiar process, both for trump and his legal team. an appearance before a magistrate judge to hear the charges against him and be given

the opportunity to enter a plea. throughout our special coverage, we will dig deep into this latest indictment. >> this latest push, claiming the indictment violates his right to free speech. they are suggesting moving it to west virginia. let's bring in our reporters and our panel. ken dilanian and garrett haake, outside the courthouse blocks from here. former fbi general counsel andrew weissmann. former u.s. attorney joyce vance. jen psaki.

take us through what we will see this afternoon. >> reporter: this is both a surrender and an arraignment. we expect mr. trump will enter the courthouse through a tunnel. he will be processed, we are told, because he has to be booked for each one of these. he will be fingerprinted through a digital machine. his mugshot won't be taken. they will use an existing photo. he may be asked some questions, including his age. then at some point he will make his way to the magistrate judge's courtroom. she's not the judge presiding over the case. she will hear the arraignment, a presentment of the charges.

mr. trump or his lawyers will have a chance to enter a plea. in miami, his lawyer did it for him. it's not clear we will hear mr. trump speak. then he will leave. he may have an opportunity, perhaps at the airport, to speak to reporters. that's unclear. one thing worth noting is the incredible lack of transparency around what is arguably the most important criminal proceeding in u.s. history. there are around 11 seats for the media in this courtroom. perhaps only five for the general public. of course, no cameras allowed in federal court. >> garrett, whether he speaks for the cameras or microphones, we know his preferred way of speaking or his most prolific is on truth social. i understand he literally just posted something new. what can you tell us about that? >> yeah. today is no exception to donald trump's preference to use his social media. he said he would need one more indictment to ensure he is

reelected. making the argument these make him stronger politically. he may get that in georgia in the coming weeks. there's every indication that the state prosecutor is moving towards charging him there. earlier, he was making the opposite argument on social media suggesting he is being charged at some biden scheme to keep him tied down and spending his money and energy focused on his legal fights rather than his political fights. it's not unusual for donald trump to contradict himself either on social media or in other public comments. he is trying to fill the space here with commentary, whether it be trying to change the venue or other arguments in his defense. he takes advantage of the fact he can say whatever he wants and the justice department will only speak in their legal filings or in the courtroom. he understands that well and he is trying to fill the information space with his views on how this should proceed both politically and legally.

>> i'm seeing right now that there's another post, garrett, from the former president. i'm going to read it. i am now going to washington, d.c. to be arrested for having challenged a corrupt, rigged and stolen election. it's a great honor, because i'm being arrested for you. make america great again. this is very consistent with what we have been seeing from him, garrett. obviously, over the last couple of days, he is trying to let people know, we are in this together. in fact, in one posting he said, i think at the end, i love you all. >> yeah, look, there's a certain political martyrdom that he is casting about himself. it's pretty effective for him on a fund-raising perspective. they raise millions of dollars every time he comes to be arraigned. it has been rocket fuel for his online campaign donations.

we put it on tv, people give him money. this thing that it's not about him, it's about you, his base, the forgotten man, the language changes all the time, but the general message is still the same, he wants people to see themselves in his shoes, as he makes his way to washington today to be arraigned for the third time. >> we know now that john lauro is going to be the lawyer of record in this courtroom today. we heard from him quite a bit in the last couple of days. >> that's right. making the argument that this entire case is moot because everything that mr. trump said and did in challenging the election was protected by the first amendment. i have been speaking to legal experts about that who say that that's really not a valid argument and probably won't make it to the jury, because it's just not the way things work. many frauds require speech in order for them to be executed. it doesn't mean that speech is

protected by the first a amendment. these are the issues the judge will be ruling on in the coming days and weeks. >> ken and garrett, i know you have to go inside. we will hear from you later inside the courthouse. you will be keeping us briefed, as will the team of nbc people at and around the courthouse. andrew is in new york. i want to begin by playing some of what we heard from former trump attorney general bill barr last night on cnn and, in fact, responding to some of the issues that trump and john lauro, his defense lawyer, have been raising. let's listen. >> do you think he knew he lost the election? >> do i personally believe that? at first i wasn't sure. but i have come to believe that he knew well that he had lost the election. what i think is important is the government has assumed the burden of proving that. it's a high bar. that leads me to believe that

they -- we are only seeing a tip of the iceberg on this. >> you think jack smith has more? >> yes. i would believe he has a lot more. that's one of the things that impressed me about the indictment. it was very spare. there were a lot of things he could have said in there. i think there's a lot more to come. >> andrew, aside from the fact that as we know bill barr, up until near the end, was hanging in, despite all the former president's false claims about the election, that said, he was an enabler when you were involved with the mueller probe, clearly. let's talk about what bill barr then, a former trump attorney general, is saying about these defense arguments. >> well, there are a number of defenses that have been sort of, i would say, tested in the public media. as ken mentioned, the first amendment argument, i don't think that is remotely close. that is simply just not the law.

the first amendment protects speech that's solely speech and not conduct. the second defense that it's been floated is this idea of reliance on counsel. the problem with that, just to name just one, is that there are a number of parts of the scheme where there is not counsel giving advice saying it's okay. for instance, the threat to brad raffensperger to have him change the votes and where he is threatened with criminal prosecution. no lawyer is going to say, yes, i said that was a valid thing to do. he lied to his own vice president trying to get him to change the votes. so all of that isn't something that a lawyer is going to be testifying in any way that they said that was legal and proper. the false elector scheme is outlined as alleged is fraudulent. that was not part of what the

lawyer was saying you could do legally. it was actually part of the criminal conspiracy that's alleged here. then the final piece that we just saw was this idea of, did he have the requisite intent because he thought he had won the election? i will say there's going to be a lot of proof he didn't think that. it's not clear that's required under the -- all of the legal statutes that are cited here. for instance, once the courts had said that you lost, that's it. you don't, for instance, get to go to congress and hold a gun to their heads and say, change the votes because i thought i won. i mean, there's a process in this country, which is you follow the rule of law. you don't get to take the law into your own hands being even if you thought you won. that will be a legal issue that is going to be in front of the judge. we will see how she rules on that. >> on the topic of truth, joyce, the key premise laid out on page

one of the indictment says, these claims were false and the defendant knew they were false. "the washington post" points out today that they fact checked donald trump throughout his presidency. they came up with more than 31,000 false statements. that works out to about 21 every day. in terms of when they actually get into the courtroom, joyce, can past practice, can statistics like that be used to influence the case at hand? >> so you can't introduce evidence that a defendant is a liar to show he has bad character and that he acted in conformity with that bad character when he committed the crimes he is charged with. you can use evidence of other bad acts and other crimes. as long as they fit within certain legal boxes. as long as you are introducing that evidence to show lack of mistake, motive, opportunity, intent. there will be abundant opportunity for prosecutors to introduce some of this evidence at trial if they get there.

this issue of whether or not trump knew, in fact, is the sort of fact issue that our system leaves up to juries to decide. the government is very confident. you can see it throughout this indictment. they have the goods when it comes to proving that trump knew he had lost beyond a reasonable doubt. everything that we see happening on the media and in public with trump is part of his argument to the court of public opinion. essentially, to the voters in 2024. that's a very different environment than being inside a courtroom where strict rules about admissibility have to be followed. and trump will be forced, as andrew says, to follow the rule of law, to play by the rules. probably for first time in his life. these sorts of, i think, consistent lies made throughout the presidency will come back to haunt him in these proceedings. >> jen, you worked in multiple white houses.

donald trump is relying on some of his co-conspirators, some of them lawyers, over the advice of white house counsel. not only the white house counsel, deputy counsel, but people in the justice department as well. he is talking about jeff clark, an alleged co-conspirator, who was an assistant u.s. attorney for the environment, with no experience in this aspect of criminal law. he is talking about john eastman and his outside advice. can that be advice of counsel, which is a legitimate defense? >> i mean, i don't know that any of them suspected when they signed up to be of counsel that they would be named as unindicted co-conspirators. you would never sign up for that. to your point, presidents have outside counsel for a variety of reasons in their personal lives. what was happening here was forum shopping for legal advice that would meet what president trump wanted it to be. people, to your point, who knew

better, who knew what the laws and the parameters of the laws were, as it related to election law and what you can do as president, were telling him, you can't do this. this is not viable. he went shopping to find people who for whatever reason would agree. >> to follow up, when you are in the white house, everyday meetings in and out of the oval office, it's very different than at night when you bring in rudy giuliani and some of the other people. >> yes. >> without posting them outside. >> of course. >> the chief of staff didn't even know they were coming in. >> correct. typically in a white house under normal circumstances, you have the white house counsel's office, the white house counsel, a deputy counsel. then you have a team of lawyers who work under them who have a variety of responsibilities. as it relates to your powers as president, what you can do as the white house, whether you can do an executive order or not there are policy reasons, you

rely on their advice. you do not go forum shopping, as any president, democrat or republican, to other agencies outside of the white house to get their validation and their legal guidance to take a step that impacts the presidency and elections. >> let me take it from there to where we are now. "the new york times" frames this as donald trump, his campaign, trying to make the ultimate jury the voters. he has been selling this. it can be hard times to separate the legal from the political arguments. as you look at the 2024 election, how has this transformed it? >> it's no question going to be the backdrop. we are -- we know already about the time line of some of the trials and when they're going to start. there could be shuffling of dates, as we have seen a little bit of a prediction of that. but this will be the backdrop. donald trump, according to his aides and almost to him, is running because he wants to avoid the legal ramifications of the actions he has taken, either

because he wants to fire the justice department, expand his own power, which he has conveyed to aides, or because he wants to pardon himself, if it comes to that point. he is running, in part, for his own legal survival. of course, it's going to be a part of it. there's a difference. the primary and the primary voters and their views -- it has hardened for him. there's a gap between donald trump and the next people in the primary. that's in every poll you see. that's a different animal than a general election. we don't know what this is going to look like in a general election. it's not there yet. typically, voters -- independent voters, people who are swing voters, they will make decisions that are different from what a republican base voter may decide or biden administration their decision on. this is undoubtedly helped him with his base. >> andrew, let me bring you in here to talk about the argument that they are going to make when they get before the trial judge

of a change of venue. how the legal issues stack up there. they are going to argue washington is not neutral. it's heavily democratic. they want to talk about moving it to west virginia. that is not only contiguous in terms of as close as virginia or maryland, but it's also arguably not neutral, having been overwhelmingly voting for donald trump. what about a change of venue in general? >> it is common -- i have litigated this in d.c. and elsewhere. when there are two arguments that defendants make. one is that because the scene of the crime is the location of the court, you need to be somewhere elsewhere there's calmer waters. that's an argument that was made in the enron case. it was made in the watergate case. it was made in the special

counsel mueller case. it was made in the boston bombing case. when you have a matter that's so high profile that every district knows about it, that argument fails. the supreme court has ruled on that. the former ceo of enron said it was fine to hold the trial in houston, even though that was the location of the crime. that argument is going to fail. the same way it did when the watergate defendants, to date myself, or paul manafort, the case i litigated, made that same argument. all of that fails. it's required for the judge to do a very careful selection of the jury to make sure that they are unbiased and can base their verdict -- as joyce said -- based on the facts and law as instructed by the court. the second argument that you reference, which is i want a jury pool that is either more democratic or more republican,

that is not the law. that is the argument that the watergate defendants made, that's an argument that paul manafort made. you do not get to go to a jurisdiction where you think there are more people who are friendlier to you. that's a question of jury selection. that's just a dead loser. that will not -- that's simply not the law in any court in this country. >> joyce, obviously, we live in a divided country. there are lots of places all across the united states where people can certainly claim, because of how people vote, that it's biased one way or another. to andrew's point, if this is going to come down to the judge really being very careful about jury selection, assuming this goes to trial, assuming it happens in washington, d.c., what does careful selection of a jury look like, joyce? >> judges are careful about jury selection in every case. when andrew says, this is not

the law in reference to trump's arguments, he is dead on the money in that regard. there's no merit to a motion to swap the venue here, because jury selection is about individual jurors. it's not about how large groups of people voted in elections several years ago. in every case, the judge has to make sure that the jury consists of people who no matter what they know when they walk into the courtroom are willing to set that aside and decide the case only on the evidence that's presented to them in the courtroom and the law that the judge instructs them on. that's what the judge in this setting will be very careful to do. judges do this all the time in high profile cases. there are notorious trials involving violent crime where community tempers have flared, or the crimes that andrew talks about in white collar cases. judges do this every day. the judge will do it here. >> jen, we were talking earlier about the general election versus the primary.

the way the former president is reaching out on truth social and through his rallies and has been gaining strength politically as each indictment piled up, each legal challenge. they came out with a campaign ad from the trump campaign. this is not from a super pac. it's one of the toughest i have seen in an election, going back to some of the really noteworthy ones, infamous ones. >> you covered a few. >> dukakis and bush 41 and some of the others. this one is also against the new york attorney general and also against the prosecutor here, jack smith. also joe biden, of course. let's watch some of it. >> what do you call someone this weak? someone caught in a bribery scandal that made them millions? complicit in a government coverup. and uses your government to get

special deals for his family. you call them, joe biden. acting like a corrupt third world dictator, biden has unleashed unscrupulous government bureaucrats he controls to act like rabid wolves and attack his greatest threat. >> there's a lot to unpack in that ad. >> then he turns -- >> legally, politically. >> you see wide shots of the people at trump rallies. >> there were a couple things i saw. it tells you about the strategy. it always does. when you put money behind something as a campaign, it's what you think is going to work. they had a couple of things in there, wolves, i don't know how they play in. what we saw there is one trying to muddy the waters. what they're trying to say there is, look, joe biden is corrupt. biden is corrupt. everybody around him is corrupt. that's the accusation against trump, who has been indicted three times. >> and he is old. he stumbled. >> as i was going to add, there's a little clip there, as

you showed, of the president stumbling. he is old. even though trump is three years younger. he is corrupt. part of the strategy seems to be to make it just confusing for the public. yes, trump has been indicted. he will say, it's unfair. people are targeting me. he is saying -- you can see this in the ad -- that guy is corrupt, too. it's all corrupt. there's not basis in that. that would -- people would have a heck of a time in fact checking that. you would see a lot from that ad. >> what a great conversation. thank you all. as we await the third and arguably most significant arraignment of the donald trump yet, a look at the six people cited but not charged as co-conspirators in the indictment. what we know about them and their potential impact on the case. you are watching special coverage of the indictment of donald trump right here on msnbc. h hiv and i'm on cabenuva.

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the special counsel's decision not to charge trump's six co-conspirators could afford them an opportunity to cooperate. five of the six have been identified based on testimony from the january 6 committee and other records. an unnamed and unidentified sixth co-conspirators was included as well. joining me now, devlin barrett and peter baker. i want to skip ahead in a way from that, which we will get back to. peter, you wrote a book. you know so much about donald trump, the way he has acted when he has been under pressure. a couple of new posts on social media that he is doing this for you was one. he needs another indictment to

secure the election. classic donald trump in some ways, but it really tells us about how he intends to try this case in the court of public opinion. >> absolutely. none of his statements so far have denied the facts, in any of the cases. he is not disputing the facts that the prosecutors laid out. he is disputing the politics of it. he is talking to republican voters. they are out to get me because they want to get you. it's about persecution and grievance. it's not about the substance of these prosecutions. that may be a good thing for him in the moment. it makes him the frontrunner and possibly the republican nominee, which he thinks will give him a shield in the legal system, because there will be a reluctance to use the courts to undo what the voters are trying to do. >> in your most recent analysis in "the new york times," peter, you have written so importantly on all of this, you covered so many white houses. this is the first president in american history who has tried

to stop giving up power after he lost an election. he subjects with his co-conspirators using violence, welcoming violence. he is not charged with inciting the violence on the hill. welcoming violence in different aspects of this in his rhetoric and in their conversations. >> yeah. he is not the first president who thought he got a bad deal, if he lost an election. the first to make it, in fact, a pattern of actions that try to reverse it. that's different than free speech, which is the argument. he is not out there complaining and saying, i thought i got a bad. it's him taking that and using it to overturn the election by using fake electors, by pressuring the vice president and eventually using the mob and the actions on that day to pressure congress and his vice president to take action. you are right, jack smith doesn't charge him with instigation of the mob. he doesn't get into that issue. are his words inflammatory enough to be a crime or not? jack smith says, i'm not going

there. what he is saying is that he used that action, that mob attack, as part of his pressure campaign to change the outcome. >> devlin, you write today about the importance of what's in trump's head, how much of it he believes of his own false claims. bill barr said, he has come around to believing trump actually knew he lost. put that in the context of this case. >> right. i think one of the important elements in this indictment is that they say right on page 1, the defendant knew these things were lies. trump knew that he was lying. i think one of the interesting dynamics that creates for the future trial is that you are probably going to have some witnesses who say they believe he knew. i also suspect, based on our reporting, you will have a number of witnesses who say he believed that there was this fraud, this mass voter fraud, that we know did not happen. i just think one of the really interesting issues here that a jury will ultimately have to

wrestle with is, what is in trump's mind? what's his intent as he sets out to do these things? >> can they get to that without putting him on the stand? >> sure. there's a million ways to get to intent, through witnesses who say what someone means, including through other actions. there are moments in the indictment that describe trump saying things that are flat out untrue and acknowledging that, for example, when he refers to sidney powell as crazy, he understands these things aren't true. the question, is there enough of that to convey a convincing portrait that trump knew he was lying? >> you recently reported that he spent $40 million from the save america pac. he is bleeding money in terms of what he is spending on lawyers and using political committees to pay those lawyers. how aggressively does he need to fund-raise off of the latest

indictment to make up the difference? >> here is the thing, he has spent tens of millions of dollars already on his legal costs. as you get closer to trial -- he is getting closer to multiple trials. those costs only increase. the numbers are going in the wrong direction for him in terms of how much he is not just spending now but how much he is going to have to spend in the near future to pay for his legal costs and the legal costs of some of his employees and advisers. the squeeze is on him financially. >> nobody knows sort of what the top is and when bottom falls out of his fund-raising. he has done incredibly well with small donors who go back again and again and again. the other part of this is, are any of those folks who have been so loyal to him able to move away, depending on what they hear? americans were polled on this recently. three in ten still believe joe

biden only won the 2020 election due to voter fraud. that's from monmouth. there's also that issue of whether or not there are and what number of minds there might be to change in all this. >> yeah. i think it's a locked in figure at this point. it hasn't moved in the last 2 1/2 years, no matter what they have been told, no matter what audits have been done, investigations. it doesn't matter that -- there hasn't been an independent authority who wasn't on trump's payroll who said there was fraud like he says there was. they are listening to him and not the republican governors and republican secretaries of state and republican vice president who said it's not true. you are not likely to change their mines on that. jack smith said donald trump lost the election. it's a flat out reality. he has to deal with that. >> peter baker, thank you so

much. we will see you throughout the afternoon. the roll that the fake electors played in former president donald trump's attempts to cling to power in 2020 is at the center of a four count indictment that's sending him to washington today. of the seven battleground states that prosecutors say trump and his allies targeted, michigan was the first to file charges against the fak fake electors. joining us now is the michigan attorney general. thank you very much for being with us. the fake electors testified in front of the grand jury in this federal case that handed up this indictment. do you expect more charges down the line from the justice department tied to their role in this federal case? >> i certainly wouldn't be surprised to see more charges coming, more indictments, as it

spread out into the states. there were a lot of actors at play here. of course, what you needed in order to ensure that this plan -- however insane it might seem to many of us now -- you had actors on the ground in all seven states that were targeted who were trying to orchestrate this plan. i should say this. i wish that we had a law, give every phone call that donald trump made as part of his pressure campaign, i think people forget in michigan, among the many people he contacted -- he contacted county board of canvasser members who were certifying elections in places like wayne county to try to get them to change their vote after the certification process. he went to the lowest levels of government to try to get anyone and everyone that he possibly could to change what was a legal process that has been done under

really extraordinary measures over the course of many, many years. it went all across the country, this plot, this conspiracy. clearly, donald trump was the one who was motivating all of it to occur. >> chris jansing here. i want to play for you how trump's lawyer, john lauro, seeing this alleged fake elector scheme. different than what you had to say. here he is on wednesday. >> there's something wrong with sending fake electors, trying to go beyond and around the law. >> these weren't fake electors. john kennedy did it in 1960. it was an exact protocol. >> different situation. >> that different situation was the case where some southern states were coming up with their own fake electors because they thought jfk was going to integrate. how do you see that defense

playing in front of a jury in 2024? >> take the state of michigan for a moment and contrast that to what we saw in 1960 in hawaii. in michigan, there was no recount. remember that joe biden won our state by over 154,000 votes. that's an insurmountable number. there was no effort to do a recount whatsoever. every single one of the claims that had been made in court had been shot down. there was no viable avenue for a de-certification of an election that had already been properly certified here. you know, what i find to be almost comical that i'm hearing from those who are still supporting donald trump is the notion that, what if he didn't really know he lost? i don't know, what about all of the homicide cases that i prosecute? it would be like a defendant saying, i shot the person and

the bullets hit them, but i didn't know it was going to kill them. i didn't have that familiarity with how a gun works or how bullets work. this man was the leader of the free world. i think for us to treat him as though he is a toddler or something and has no ability to understand that everyone around him exclusively republicans, by the way, all of these individuals that he was trying to convince to assist him or who were telling him that he had, in fact, lost the election, were all his most trusted advisors, campaign staff, attorney general, et cetera. i can't believe that anybody would actually lend any credence to this argument that he couldn't have known that what he was doing was wrong or he had lost the election. it's ridiculous on every level. >> i want to read this key portion of the indictment, the federal indictment, on your

state. in the meeting, the defendant raised his false claim of an illegitimate vote dump in detroit. in response, the michigan senate majority leader told the defendant he had lost michigan not because of fraud but because the defendant had underperformed with certain voter populations in the state. yet, he still pushed that false narrative over and over again in your state. this is similar to what he was claiming in philadelphia. there seems to be a racial connotation of singling out detroit or philadelphia in another swing state. what do you make of the charges against him right now? >> well, first of all, when the senate majority leader told him that, he was right. in fact, as the former president was told, he actually did better in the city of detroit in 2020 than he had done in 2016. he lost because he was so outperformed in predominantly white areas like oakland county

and kent county. again, he was told this after he summoned our senate majority leader and our speaker of the house to washington, d.c., to an oval office meeting, where they were browbeaten by the likes of rudy giuliani and sidney powell on encouraging them to do something illegal, which was to undermine the certification process in our state. was told time and time again by those individuals and by many others here in michigan that what he was asking could not happen because it was illegal to do so. again, i think it's a very strong case. for those people still supporting donald trump, i don't think it's because they don't think that what the allegations are really occurred. it's that they don't care that those things really happened,

because they support donald trump and think that he should still be president. they don't care what means or mechanisms would have been utilized for that to happen. >> given the evidence you have seen, do you think you are the first domino to fall here? could others file charges? have you had conversations with other states' attorneys general on this? >> i have. it's important to remember the law varies greatly from state to state in terms of what kinds of charges would be applicable. the jurisdiction varies greatly. for instance, in my state, i have statewide criminal jurisdiction. which means, i can prosecute a case, investigate a case in any county in michigan. that's not true for some ags in other states. some of them can only work in a certain county if they are authorized to do so by the county prosecutor or the district attorney in that area.

there are a lot of different factors at play. the facts are different from state to state. remember that, for some of these false slate certificates, some of them had conditional language. others didn't. so these are not really uniform across the states. each state ag is going to have to make that decision for themselves as to whether or not they have the facts and the evidence that comport with the law in their case. >> thank you so much for taking the time to talk to us. as donald trump prepares to leave his new jersey estate to appear in federal court a short distance from here, a look at what his defense strategy might be with one of his former attorneys. you are watching special coverage of the indictment of donald trump right here on msnbc. trelegy for copd. ♪birds flyin' high, you know how i feel.♪

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commissioner bernie kerik. you were a part of this team until a few months ago. if you were still defensing him, which part of this indictment do you think is the biggest threat? >> the biggest threat really is the jurisdiction. this is a case brought in d.c. where the judge panel and the jury panel is going to be very predisposed against donald trump. at the same time, i think that a lot of the issues in this case are likely to be overturned on

the appeal process. i don't necessarily see this case as being the biggest threat to donald trump overall. >> you don't think this is a strong indictment? >> not at all. not at all. i will tell you why. it comes down to the achilles heel of knowledge. jack smith must prove beyond a reasonable doubt that on the night of january 5th, morning of january 6th, that donald trump knew that he had lost that election. reading through that indictment, i didn't see anything new which would actually be able to establish that. >> first of all, he is not charged with inciting the riot. january 5th and 6th is not the only part of this case. there's right from election day on that is in the indictment of him claiming he had not lost when he was told over and over again by his general counsel, by others in his orbit, by his

family members that he had lost. how are you going to establish if you were his defense lawyer that he didn't think he had lost the election? >> remember, it's not about inciting an insurrection. it's about conspiracy to obstruct an official proceeding and defraud the united states. it's not about what happened outside the capitol and when the protesters breached. it's about what he was try doing with that proceeding that mike -- >> it's the fake electors. there's a lot here about -- in the indictment about the conspiracy that went well beyond what happened in the capitol. >> but it all relates to that. they are talking about all of the buildup. but if all he is doing is making claims on tv and making claims in speeches, then john lauro would be right that it would be a first amendment issue. we shouldn't be criminalizing that. what makes it go from being a

pure prosecuting somebody for speech to actually trying to shoehorn is into a criminal offense is by tieing it to that proceeding. if you don't have that official proceeding, then it's just speech. it really all does tie into, what were they trying to do at the proceeding? we talk about the alternate slates ofelectors. what was the purpose of those slates? if the purpose of that slate was for some corrupt purpose, then that's why that would be something that would be worthwhile to charge. if the electors -- >> how is it a slate of electors that weren't chosen by vote not corrupt? >> denying people their right to be fairly represented. >> it depends on what they're going to use the slate for. nobody believes that mike pence is going to lock at these two slates and say, i don't know who won michigan, i will pick this one.

that's something that your industry makes impossible for somebody to do. to consider that to be a scheme to defraud is not placeable. people may not agree with what's written on the slates, but pennsylvania specifically said, alternate only to be used in the event of. michigan didn't say that. but the michigan electors gave interviews saying what the purpose was, this was to be an alternate slate to be used in the event the primary slate was invalidated. >> under that theory, if someone -- if someone built a bomb and decided they were going to bomb a public building and they were stopped, you don't just say, well they didn't get away with it. >> no. that's a totally, completely different scenario. >> you are saying, you are putting -- what is the point of a slate of fake electors if not to overturn a legitimate election? >> the purpose of having a slate of electors as has been done in

prior elections is to have an alternate slate available in the event that the primary slate is invalidated. that's what they were very vocal about at the time. that's something that the ag will have a difficult time getting over in her case. that's going to be a dismissal, too. you have to -- you can't just look at the document and say, i don't like this document, it doesn't look true. what is it being used for? if you can't connect that to a scheme to defraud, it's something that you can disagree with, it's something you can vilify publically, but it's not something you can put people in jail for. >> you suggested our industry was involved in this. in fact, there were 60 federal judges who decided -- 60 federal judges decided there was no appreciable fraud in a number of the states, seven states in particular that we are talking about. we talked about michigan and

georgia -- >> that's not accurate. >> it is accurate that -- >> most judges rejected them on standing. none of the judges actually got to the merits. what i was saying about your industry is, it's not plausible that mike pence wouldn't know who won the states because this is not 1800 where we have slates coming in by horseback. mike pence watches the news. he knows what happened in each of those states. he is not going to pick the wrong slate. >> he had been briefed by the head of homeland security, as had the former president, about the security of the election going into it and had been briefed by many officials, many officials from the justice department and elsewhere about the election being over, including donald trump's own family who were members of his staff. >> let me ask you, since you are making such a passionate defense of donald trump, if you were given the opportunity, if you were asked, would you go back on

this team? >> under certain circumstances, i would consider it. >> what would that have to be? >> that would have to be a personal conversation between me and the client. i have been vocal in the past about why i left the team. it has nothing to do with the case or the client itself. a rne it difficult for me to have the freedom to properly defend him based on the facts and evidence and not the politics. >> thank you very much, former and potential future defense attorney for donald trump. joining us now is andrew weissmann, former lead counsel on the mueller probe and deputy at the justice department. let's turn to the law here. seems like we're not just focused that the -- the indictment is not just focused on january 6 or january 5. >> absolutely that is one of the

brilliant strategic steps that jack smith took, which was to not focus on sort of first amendment issues a rising from the former president's statements on the elipse and focusing as the january 6 committee did on the larger scheme. just in response to one of the things that tim said about -- and you were both expressing him with respect to the fake electors and what on god's green earth would they be for if not to try to overturn the election, he said nobody would plausible think that. former vice president of the united states has now said post-this indictment being revealed that he actually was spagts exactly that, being pressed not just to delay the vote but to reject the vote. and that is exactly when the team is alleged to have done. what he is saying is implausible is exactly what is charged and

what the vice president has actually now said that he was told. so the vice president of the united states, which is remarkable, will be under oath in this trial testifying about it. and he has no motive to lie about this. i mean, this is something that he has tried to avoid talking about. he had tried to avoid testifying in the january 6 case. and then he did it to his credit, his duty when called to the grand jury to give testimony under oath. >> and in fact, michael, can we step back for a minute. the testimony and evidence is striking including a former vice president taking contemporaneous notes about the actions of the president he served and for a very, very long time served very well in terms of he had his back, mike pence had donald trump's back. what do you make of this moment in history as we did in-to learn more about the case and we are going to see donald trump entering yet another courthouse

for the third time facing very serious charges arguably the most serious. >> very much so. and i agree the most serious. let's just remember although this is a little like what we've seen before, this is a day that we've never seen before in american history. this is ex-president indicted and arraigned for things that he did in office. >> and when you step away from the politics of it, as a historian, does it take your breath away a little bit? >> it does because of the consequence of what he does on january 6 and in the run-up to that. you know, richard nixon obstructed justice. we've seen that charge lately. other things, abuse of power, but in trump's case, this was not to cover a political embarrassment like the watergate scandal, this was something that had it succeeded and it came close, we could have lost our democracy, our rule of law the way that we choose presidents and other public officials. >> how do you keep america

focused on the case because of the multiplicity of the cases against him and more to come? >> i think one thing is if this case is the first one to be addressed in the trial, that will help a lot. but i think that we always have to remember that as serious as these other charges have been, this is something that could have caused us to live in an autocracy and may yet again because donald trump is running for another term. >> such a lack of transparency, not only is it a federal court, but a federal court where there are only 11 seats for journalists, period. >> terrible. >> and there is an overflow room, but that itself is also limited. there has been an issue raised about cameras in the courtroom and the chief justice has spoken out against cameras in various courtrooms before. so seems unlikely that he would change his mind.

but how important would it be if like the january 6 hearings and the watergate hearings which you know so well, if americans see this, see the arguments, see the cross-examination and have a better feel for what is going on inside? >> absolutely. and especially because compared to most of american history, if we do not see this trial with our own eyes and hear with our own ears what is said about donald trump and what is said by the judge and see this history unfolding, we're going to be dependent largely on third party accounts in a media atmosphere in which there are many people who want to protect donald trump whowill disseminate lie after lie. and a large chunk of the american people will be misinformed about the gravity of these charges and how well this is -- >> and you speak of the media and how people are in their own niches. but also foreign interference. we have evidence that there are

already attempts by china, russia and others to manipulate it. >> and they have direct ability do that in all sorts of ways that does not exist before the internet. so compare it to the timeof nixon, there was a mainstream media, there were people handing out handbills with conspiracy theories on corners but they didn't have access to billions of people on the internet. very different now. >> michael, thank you for coming in. moments from now, we expect donald trump to leave his home in new jersey and begin to make his way to washington here where he will face a federal judge entering a plea on charges that he conspired to overturn the 2020 presidential election. we have much, much more ahead. what if your entire day glided like dove men? it's made with a plant-based moisturizer and glides on without irritation. so you can glide through your entire day with confidence.

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welcome back to our special coverage of the donald trump historic indictment. right now the former president expected to begin his journey from new jersey to washington, a trip he's made dozens of times before but of course never like this. and instead of heading to the white house of course, he will be heading to the federal courthouse two blocks from capitol hill where he will be surrendering to u.s. marshals. he will be fingerprinted and booked on criminal charges and be arraigned before a magistrate judge this afternoon. he will be represented by john morrow. the defense still taking shape but we've heard more from one of his former attorneys parlatore who insists that the case is weak. >> it comes down to the being a