supreme court justices, went back on himself. >> and that's why i think the gloss on today is you can win the battal and lose the war. today for two reasons was a very good day for donald trump. but there were overhangs about the immunity decision. two justices who made comments that led me to believe that they are notes for trump on the immunity question and we'll see. >> today made me want to go to law school to be a constitutional lawyer. lisa rubin, mark, thank you very much. president biden is about to speak in leesburg, virginia. i'm going to hand it over to "deadline: white house" to take over that. don't go anywhere. hey, everyone. it's 4:00 here in new york. we have a lot of news to get to today. including the release of a report by special counsel robert herself and the handling of

classified documents. the special counsel found evidence that president biden, quote, willfully retaineds classified materials found no reason to press criminal charges. drew distinction between the criminal probe of handling of documents and his findings regarding president biden. the long standing justice department priniple that you cannot indict a sitting president does not apply and would not bring charges even if joe biden were no longer president. we'll have more on that later in the program. we begin with a hearing at the nation's highest court. an historic hearing for some very big questions about the constitution. the future of our democracy and at the heart of the case, a request from voters for some accountability for an unprecedented insurrection. first up, jonathan mitchell, the attorney for donald trump, argued among other things, that january 6th was not an insurrection. it was a riot. he also argued that the president is not technically an

officer of the united states. here's what justice sotomayor had to say about that. >> principle argument is that the president is not an officer of the united states, correct? >> i would say a little more forcefully than what your honor just described. we belief the presidency is excluded from office under the united states, but the argument we have that he's excluded the president as an officer of the united states is the stronger of the two. >> it's assigned to benefit only your client? >> i wouldn't call it gerrymandering. >> you didn't make it up. i know some scholars have been discussing it. just so we're clear under that reading, only the petitioner is disqualified because virtually every other president except washington has taken an oath of office to support the constitution, correct? >> that's right. >> then the attorney for the colorado voter came under

intense questioning. it was a liberal justices expressed skepticism. a big focus for the court, why one state would have the power to disqualify a candidate for office. >> the whole point was to restrict state power, states shall not abridge immunity. that seems to be a position that is at war with the whole thrust of the 14th amendment. and the question you have to confront is why a single state should decide who gets to be president of the united states. in other words, this question of whether a former president is disqualified for insurrection to be president again, it sounds awfully national to me. >> chief justice roberts expressed fear that disqualifying trump would open a pandora's box from republicans. that the act of disqualifying trump from running for office

would break democracy. >> if colorado's position is upheld, surely, there will be disqualification proceedings on the other side and some of those will succeed. some of them will have different standards of proof. some of them will have different rules about evidence, maybe the senate report won't be accepted in others because it's hearsay. maybe beyond a reasonable doubt, whatever. in very quick order, i would expect, although my predictions never have been correct, i would expect that a good number of states will say whoever the democratic candidate is, you're off the ballot and others for the republican candidate, you're off the ballot, and it will come down to a handful of the states that are going to decide the presidential election. that's a pretty daunting kobs kwens. >> there is a lot to get to today. this is where we start.

with form acting u.s. solicitor general, plus former assistant attorney general harry litman, who was there today at the arguments for us and with me at the table for the entire hour is former top prosecutor at the department of justice andrew weisman. i want to go really broad, and then i want to zoom in on the arguments that we heard. so big piture, what did you make of today's arguments. did the justices converge on a position in this case? >> they did. it did not go well at all for the challengers to donald trump, and that's to put it mildly. i have seen hundreds of oral arguments at the supreme court. you often can't tell where the justices are leaning. this one you could. and for good reason. when you're doing a supreme court argument, your job is not only to answer the justices' questions, but to state the ative case for why you should win. these lawyers never did that. they made the case sound technical and like a gotcha in

the constitution instead of making the basic point that this is a center piece of our constitution forged after the civil war, after all that bloodshed for a simply reason. our founders coming together and saying, no more insurrectionists. it's too dangerous to have people who give aid and comfort to the enemy. and there was just such little discussion of that and instead, it was all on the other side. like the interchanges that you were showing about 50 states and we should only let one state shouldn't be able to decide the whole. there were five great answers to that. they are all friend of the court briefs, but we heard none of it. pfs it a dismal showing for the challengers to donald trump. >> you want you to know if you agree what surprised you most. if you do agree, is that a prep issue? is that a strategic issue? why does that play out that way? >> i have a different take. i generally agree with neil that

this maybe wasn't presented in the best possible light. i do agree with that. i also agree with neil that this is not one where you sit there and go, you can't really tell from the argument. the only open issue is whether there will be any justice, any one justice who will vote to affirm colorado. i actually don't think there will be, al that's irrelevant what my opinion is, but there would need to be five. that's not happening. i do think that there are a lot of issues here. and i thought one of the things that is really good for our country not just for the supreme court is seeing the lawyer for donald trump did an excellent job and he conceded things he should have conceded. he didn't fight things and make outlandish arguments. he didn't say as the trump lawyer said in d.c., yeah, i think it's actually okay to kill people and unless you're impach

successfully, you can get away with it. he had credibility with the court. >> he conceded what happeneds was a right. he wasn't willing to call it an insurrection. >> he should have shameful. so i'm not sure donald trump would say that. >> he indeed also conceded that a federal chashlg of insurrection would solve a lot of issues that were being raised about needing a national statement in an area to your clip about justice kagan saying this seems national. it came up what if there was a federal charge under insurrection where the remedy in the congressional statute is that the person convicted cannot serve. he conceded that we may have presidential immunity claims, but that charge and conviction would solve a lot of these national concerns. the concerns about can each and every state create this sort of crazy quell.

that you heard so many of the justices respond to. neil is right that there are responses to this, but it just means this was one where there were responses on both sides. neil is correct to point out that those weren't necessarily all put forth in the oral argument. he would have had to have read the broefs for the more detailed response. >> i want to play something that justice jackson said about the text of article 3 of the 14th amendment. take a listen. >> people that were barred and president is not there. so i guess that just make mess worry that they weren't focusing on the president, and for example, the fact that electors of vice president and president are there, suggests that really what they thought was if we're worried about the charismatic person, we're going to bar insurrectionist electors, and therefore, that person is never

going to rise. >> this came up in the debates in congress over section 3, where johnson said why haven't you included the president and vice president in the language. and senator moore responds, we have. look at the language, any office under the united states. >> but doesn't that at least suggest ambiguity? this ties into justice kavanaugh's point. we had a person right there at the time saying what i'm saying. the language here doesn't seem to include president. why is that? so if there's an ambiguity, why would we construe it to as justice kavanaugh pointed out, against democracy. >> yon son came back and agreed with that reading. any office is clear. the constitution says 20 times. >> i wonder what you made of justice brown jackson parsing the words of the 14th amendment? >> so a few things. first, just to gloss on what

andrew and neil are saying, this case was lost before oral argument. it was evident by 10:01 which way it was going to go. while they did coalesce around a bottom line, they have not coalesced around a result in the dramatic aspect of the three hours was that different justices were trying out different things. this one by brown jackson is a good example of what andrew was talking about in terms of concessions. she gave a softball and he said, no thank you. what she was offering up is a reason why they would have excluded the president, namely because they were worried about confederate burroing into small state offices, not the bigger one. but he said the overall record is not so good for me on that. that's not my argument. and it was just part and parcel

of a very interesting process where everyone seemed to agree with kagan's point. bedlam and chaos ensues if we affirm, and yet, how exactly are we going to reverse and it will be chief justice roberts' job to try to get the -- i tend to agree with andrew, 9, but it could be 8 justices to endorse a single position because it's the sort of moumental case where you want the supreme court, if you can, to speak with one voice, not just with result but rational. >> putting aside the exchange that andrew and i were talking about vis-a-vis january 6th, the language around was it a riot or insurrection. you had had trump's lawyer calling it criminal. it really wasn't the center piece of what we heard today. january 6th itself did not seem to take up the majority of the air time was not what was being reckoned with. talk me through why that was. >> i think trump's lawyer made a very smart, strategic decision. remember the colorado trial court here after a 5-day

hearing, trump had the opportunity to evidence and the like, and that's what that factual finding was. when cases go up on appeal, there's standard of review. and the standard of review here for when you're trying to contest a factual decision by the trial court is clear error. they have it totally botched wrong. the lawyer made a strategic move in saying at least in my world, at the oral argument, i'm not going to waste my time because that's a really hard thing to win. i think i lack harry's mind reading capabilities. i certainly don't know how he knew it that the case was lost when no justices had had spoken at the time, but i think when you're doing a case at this gravity, you got to make it hard for the court.

you got to call them out and say, look, you conservative justices, you at your confirmation hearings talked about strict construction of the document. here are the original is really clear. it's all about excludeing people like donald trump. here is the evidence and the like. if you don't do that, the american public at the very least as listeners, but the court itself is left with the impression that there was just nothing to this. this was just an insane idea by colorado where they grabbed the power for the other 49 states and anointed themselves the state that can pick the president. that was never actually what colorado did for the argument. we never heard it. so it was unfortunately a troubling presentation. >> what would the pushback have looked like had it come from you? >> i don't know if i would have done a better job, but would have been able to say based on the briefs a few things.

number one, that they were advocating for a 50-state rule. colorado can have its decision, it doesn't bind're states and each state can have their own processes. that the 14th amendment essentially about barring insurrectionists and that it has to be read broadly in light with that purpose. most importantly, that the 14th amendment itself, congress had had a solution to any concern of one state basically being able to do something wrong and disqualify someone that shouldn't be disqualified, which is congress by a two-thirds vote lift that disability, that restriction. oddly, i think the one place that the trump lawyer stumbled is that's where he started. he had this whole argument about the two-thirds provision in the constitution and saying that meant that the supreme court couldn't decide anything, which i think was never going anywhere. but with that did was highlight, hey, colorado is not seeking something undemocratic. they are saying we're going to force the text in the 14th

amendment as written, and if people disagree, if trump disagrees, go to congress and get the disability lifted. it may not have been a perfect answer, because this is very serious momentous decision to have this state remove someone from the ballot, but there are brief after brief that makes these points. department hear that so it made it an easy case for trump. >> as you said, that argument boomeranged back. you and i i talked about trump's attorney, what he said about january 6th. i want to listen to it and talk about it on the other side. >> organized concerted effort to overthrow the government of the united states through volence. and so the point is that a chaotic effort to overthrow the government is not an insurrection? >> we didn't concede that it's an effort to overthrow the government either. this was a riot. it was not an insurrection. >> multiple points there, which is that would seem to ignore the planning that went into this. this fact that this wasn't just

any day at the u.s. capitol. this is the day they are supposed to be the certification of an election and that distinction between violent versus chaotic. i don't understand what they are driving at. >> this is an area where if you are representing trump, you want to steer far away from this. you want to win sort of the legal battle, but you do not want the supreme court even just at oral argument to be pressing on. you may have a legal point, but don't talk to me about this not being an insurrection. and so you could have had a lot justices even justices who think that legally there was a problem with colorado, but factually, there's a determination here. there was a hearing that we lived through this. everyone watched it on tv. so steer wag from the facts, was

a smart move and to neil's point if you're on the other side, you need to be focusing on those facts and saying the talking about what happened. and steering it to some part that's useful. i think here justice jackson is saying you do not want to wrestle with it. she was a star in this hearing. just making really good points, really tough questioning. it's very good for the country to see justices who are viewed as either lib call or conservative asking really good questions that seem completely apolitical and very focused on text, history, why would this be done, would it even make sense. and look at the result and saying if it's the result that could occur, all this chaos. is that would have been intended at the time.

this is the professor in me. it's really useful for the country to see a body sitting -- especially the supreme court, which is rightly at times been attacked for how it's operated, to see them operating in a way that is asking bipartisan, smart questions on both sides. >> we talked about what the trump team didn't want to talk about, so let's talk about some of the arguments that team trump was advancing. section 3 does not apply because he never took an oath and never entered political office. you have than mitchell saying it's odd he would fall through the cracks in a sense. too convenient for the justices that this only applies to trump that in the words of sotomayor, it seemed like a gerrymandered rule. >> first of all, before answering that, i want to really echo andrews's point. it's so important for the country to see an oral argument like this, what i get to see

often, which is nine people who are bringing their a-game, asking hard questions of both sides. it astounds me we don't televise these things, because it would be a momentum thing for the country to be able to see this and not just listen to it with audio, which is cold and hard to understand. with respect to trump's argument, many observers thought going in that trump was going to push this argument, that the president is exempt from the 14th amendment. that's what actually the trial court did in colorado. it's always been a weird argument. and the trump lawyer acknowledged it. it creates some weird absurdities that the most important person isn't covered by the 14th amendment and others were. even though the founders of the 14th amendment had people like jefferson davis and the like in mind. i think mitchell, the trump lawyer, was smart to really actually down play that argument. he certainly answered the court's questions about it and focused more on this different

argument, which sounds technical, it's about whether the 14th amendment is self-executing. what he's basically saying is congress needs to pass a law to set up the procedures by which the 14th amendment would be enforced. and no one state can do it on its own. that picked up the concerns of the chief justice. when it comes to a national presidency. if i had to guess, i would suspect we're going to see some version of that argument and trump's lawyer advance to a quite narrow one based on this case. >> to the point about not televised and no cameras in the court, you were in the room. anything that stood out to you or we would not be able to perceive just listening to the audio? >> besides the cold point that it's hard to listen to, yes,

there was certainly a kind of nerds version of a sporting event, where people were lined up and we were crowded together a little bit more and there was a bit of electricity. so you could feel all of that. i want to add, besides that, i think everyone recognized where it was going, the bigger point is some justices thought that the consequence of affirming would be the entire country would go this way. others thought it would just be a cascading bedlam. either one seemed just entolerable to the justices. and either one seems like something they really didn't want to endorse themselves. but they are going to get together in conference and sort of hammer out what chief justice roberts very much hopes will be a single rational, and i think neil's prediction is about as

good as any. i also think we'll probably seeing this by super tuesday or they will be aiming for it. they are aware of the practical consequences of this case. that was clear from the start. >> harry litman, thank you so much for spending time with us. neil and andrew, you're sticking with me. when we come back, breaking news this afternoon. the special counsel's report in vice president joe biden's handling of classified material. it's out. the president addressing the report in just the past few minutes. that's next. plus we're going to take a closer look at the nine justices hearing those arguments today. it wasn't lost on anyone that despite calls for his recusal, justice thomas was there. his wife a stop the steal activist, much more on that, ahead. and later in the show, the secretary of state who said for the sake of democracy, justices need to act swiftly. it was referenced during those arguments. michigan's jocelyn benson joins us ahead. all the those stories when "deadline: white house"

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news breaking this afternoon. special counsel robert herself says he will not be recommending special charges. the report which was released to congress today found that the evidence did not establish president biden's guilt beyond a reasonable doubt and the prosecution of the president was unwarranted. the investigation did find there was evidence the president willfully retained documents, some of which were found in president biden's home in delaware. he will not be asserting executive privilege in this

case. just in the past few minutes, president biden addressing the report at a democratic retreat in virginia. take a listen. >> i was breeze plooezed to see they reached a conclusion. there are no charges should be brought in this case. i was in the middle of handling an international crisis. s i was especially pleased to see the special counsel make clear the stark differences between this case and donald trump. as a special counsel wrote, and i quote, several material distinctions between trump's case and biden's are clear. most notably, after given multiple chances, this is a continuation of the quote, he returned classified documents and ais voided prosecution. trump allegedly did the opposite. bottom line is the special counsel in my case decided against moving forward with any charges. this matter is now closed.

>> let's bring in ryan rite lee, who has been going through the report for us. neil and andrew are back with me. i want to start with you since you described yourself as a pretty good guest to talk about this. with the mueller investigation, talk to me about the distinction between evidence that the president willfully retained documents and the difference between finding that the president willfully retained documents. >> sure. so i think when this came out, this huge report that's here, people were saying that they found that there was willful retention, but decided for discretionary reasons not to charge a finding of criminal willful retention. and that's not what the report says. it says that there's some evidence that they had, but they explicitly say it doesn't rise to the level of proof beyond a reasonable doubt. to bring a criminal case, there has to be proof beyond a reasonable doubt. in fact, one of the things it

says is the opposite. there are innocent explanations that we cannot refute. i was a prosecutor for 21 years. that's when you don't bring a case. you'll very often find some evidence when i was on the mueller investigation, there were lots of things we found some evidence of, but that is a far cry from saying that there's either a. of the evidence or what's needed for a criminal case, which is proof beyond a reasonable doubt. when you're looking at what happened, what the prosecutors are going to be looking at, is there proof beyond a reasonable doubt that the current president of the united states willfully retained documents, meaning he knew there were classified documents at the time and still knowingly kept them. remember, it's not a crime to make a mistake. if you happen to have something in your briefcase and you just didn't realize that one of them was classified and then you look at it and realize it, that's not

a crime. it's the actual retention of it, knowing that it's classified, what is charged with respect to former president trump, where that is finding that there's both a grand jury that said there's a probable cause finding and the government will prove, if it gets a conviction, that it is proof beyond a reasonable doubt. so this is very, very much apples and oranges. so this is a long answer to your question, which is you got to look at the nature of the level ofproof. saying that you have some evidence, but it's not enough for a criminal case is really different than somebody says i found enough for a criminal case, but i just decided there are discretionary reasons i'm not going forward. >> a critical distinction. i'm looking at the pile of paper that andrew weiss mass ha has brought to this set. this report, i was hoping someone would give me a visual, you have been reading through this.

talk me through the findings of this report. >> reporter: i think politically speaking, while i think it lays out and having a trump-appointed the federal prosecutor say there are these huge distinctions between the trump case and biden case is certainly whooil. you see see a number of republicans on the hill sa that say there's a double standard here. this refutes that and lays out the distinctions between the trump case and the biden case. ultimately, you take away it's probably going to be these lines that this report contains about the president's memory. sort of says that he would have portrayed himself to the jury as sort of a sympathetic old man with a faulty memory. and just to hear those lines about the sitting president of the united states, i think, is something that's going to hear a lot about on the campaign trail

going forward. it says here that joe biden couldn't remember the year that his son beau biden died and couldn't recall immediately when exactly he was president. and it really really leans into this idea that his memory is one of the reasons that they decided not to charge him. so that really sort of opened the door here. and i would be curious to hear what they have to say about those lines would be. but really i think handed sort of a hammer to republicans who want to go after joe biden for being older and a lot of the issues he's already facing on the campaign trail going forward. >> i want to hear the appropriateness of it. >> i have strong views on that based on the model that james comey set, where somebody there,

hillary clinton was not being charged and yet a person goes out and gives their opinion with ab verbs about what they think. entirely inappropriate that's not the role of the department of justice. i don't even understand why you would engage in just as a prosecutorial matter your memory today is irrelevant. whether i find you in an interview to have forgotten things, certainly to say what do you remember about certain documents in your house four or five years ago, i would understand that you might not remember that. to talk about your memory today, irrelevant. it's gratuitous. it's what you're not supposed too which is putting your thumb on the scale. your decision is essentially the vernacular is put up or shut up.

you either decide to go forward that there is proof here or you don't say anything at all with respect to your opinions about the case. if you want to talk about something that would be legitimate, which is what president biden would have thought at the time that he had these documents in 2017, i think that's fair game to say at the time, there's evidence that he either remembered or didn't remember. that time period would make sense. but that's not what this report does. so i think a really fair criticism of this is unfortunately we're seeing a reduction of what we saw with respect to james comey at the fbi, with respect to hillary clinton in terms of really not adhering to the highest ideals of the department of justice. >> do you have that concern? >> i do. i want to prefer to your pretty good guest on this.

my two tours of the justice department tell me that andrew is aiding the general way the department handles things. and indeed, not just the general way. my first tour at the justice department, i wrote the special counsellations that give this special counsel his power. at the end of it, we said that there shouldn't be a republic report or list of adjectives to use that would occur. with had those public reports, but i'm not aware of anything quite like this. in which you have a special counsel going after the sitting president for being too old and having a faulty memory. he's come up with a clever way to get those adjectives in there to say this is what i would face if i i brought it to trial. by andrew says, totally

gratuitous. the earlier report said biden had innocent expla neighs for his behavior. it just did you want feel like that's doing the work. it feels like a too clever move by the special counsel to try to take some swipes at a sitting president. it doesn't sit well with me at all. i do think that it's very much intention with the justice want department guidelines on special counsels and a big surprise that the attorney general evidently didn't police those regultions at all and let that happen. i get the need for transparency. i know that in the report goes out, it says biden's very different than trump because biden ordered full cooperation with the investigation, no indication of executive privilege or anything like that. trump's invoking every privilege, left, right, forward, making ones up to try to block having to tell the truth in

court. biden obviously did the reverse, but this particular piece does not sit well with me. >> there's another piece of this. which is the statement for the report. we conclude that no criminal charges are warranted. we'd reach the saim conclusion on the if the policy did not foreclosure clarges. why was that necessary? >> because people would say there's a department of justice policy that you cannot charge the a sitting president. so this is saying, leave that aside. if we could actually make the decision, if we could present this without the disability and go forward, we wouldn't do it. so that it's making it really clear to them we cannot do this. >> it seems complicated that they are trying to extricate the politics of this one hand while then sort of entering other elements that are seem political with another. >> i have two words for you.

james comey. so what he did was stating the obvious. which was there was no criminal case against hillary clinton. that there was just to me there was never going to be proof beyond a reasonable doubt in that case. and that was what was found. and the appropriate thing to do there is to just say, we're declining. there's insufficient proof. it is not at a time to have a press conference to state, by the way, let me give you my personal views. that is why here, you really are supposed to be better course is to stick to the facts. that's why i was very interested and always very concerned when i heard who was appointed, whether they were going to use adjectives and adverbs. adjectives and adverbs, those have no place at this point. if you indict somebody and convict them and then want to

talk about the case, maybe then. this had is the complete opposite. it is worth noting to me we're sort of in the weeds about the propriety of how this is done and certainly politically will take on that spin, but the big take home is that this investigation which is incredibly thorough for a year that went through everything is there's no criminal case to be brought here. there's no ab instruction. there was cooperation. and just to be fair, he does contrast this with what he knows about the trump case to talk about why these are dramatically different cases. and that is what you do in the department of justice. facts maerlt. you draw this distinction. and that's actually what the public is now going to have to

look at and see. do they think those are meaningful distinctions. >> i am already working on your cross stitch. now i'm going to have to put that aside and work on adjectives and adverbs have no place. thank you both so much for spending time with us. andrew is sticking with me. up next, back to the supreme court hearing today. the court already facing a crisis of confidence hearing one of the most consequential cases. we'll go back to our other top story, right after this. ther top story, right after this. ♪♪ we're building a better postal service. all parts working in sync to move your business forward.

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if the court says there's no procedure for determining president trump's eligibility until after the election, then what happens when members of congress on january 6th when they count the vote says we're not going to count electoral votes because he's disqualified under section 3 under the electoral count format. a numb of the briefs, such as those of professor ginsberg made the point that is a constitutional crisis in the making. it's all the more reason to address those issues now in a judicial process on full records so that everybody can have certainty on those issues before they go to the polls. >> jason murray, the lead attorney for the colorado voter seeking to have former president trump removed from the ballot on constitutional crisis looming. if the court doesn't act now, it's all happening in the backdrop of a crisis of the court's reputation. multiple justices having ties to activist who is worked to overturn the election. justice clarence thomas began today's questioning.

thomas has ignored calls for his recusal over his wife's efforts to overturn the election. she was deeply intertwined in the lead up to the january 6th insurrection. texting mark meadows urging him to be relentless to posting on facebook, cheering on the capitol rioters saying, god bless you. to pressing 29 arizona lawmakers to overturn trump's defeat to actually attending the rally itself. a poll from the university of massachusetts found that 64% of americans belief that thols should have recused himself from the case. the concerns over the stench, those are the words of justice is sotomayor, go far beyond this specific case. the belief that the the supreme court has been politicized is ethically compromised has caused faith in the court to plummet. a new poll finds the supreme court's approval at its lowest point ever. 40% of respondents holding a

negative view of the highest court. joining our conversation is legal correspondent and senior editor for slate and andrew is back with us. we're on today's call. before i get into the specifics of this segment, everyone just wants to know top line what you thought of today's arguments. >> i mean, just slightly connected to what you just said, it's kind of spectacular and ionic that february 8th of 2024 is the day that the roberts court discovers humility. this is the court that wants the last word on water pollution and air pollution and vaccine policies and immigration law and lone forgiveness, but today they tell us it would be ridiculous for try to decide what an insurrection was. i guess the good news is that an institution that has shown very little capacity to understand it has limits decided today it has limits.

i hope that it means that next week when they have to confront the d.c. circuit they will show the same humility and say that case was correctly decided. but mostly to me, it was just s a tonnishing to watch the justices throw this hot potato from one to another and try to find a reason to make it go away. >> talk to that point of seeing the immunity case and the arguments we heard today side by side. >> so i'm so naive on this. i think it's because i'm an institutionalist and i want to believe that people are acting out of principle, particularly i'm a lawyer. i appear in front of judges. i want to believe that with respect to the justices. and so there was a number of questions that were asked by conservatives and so-called liberal side of the court and the conservative side, which i thought were legitimate

questions. in other words, i wasn't looking for what are they really doing. are they really trying to just avoid the decision. are they just actually doing their job? now she's right to say, well, i can give you lots of examples of them completely inkipt. this trotting out that they are originalists and having a decision about guns that is not at all the originalist and overturning roe. there's many examples to disprove by faith of the institution. but i felt like this was real concerns on both sides of the aisle, so to speak, i to think when it comes to immunity, that is an area where they could easily, especially having just in through this week, that they want to avoid another showing like this. there's another huge hot potato

and the claim that donald trump is making there is so outlandish that in any other case, they wouldn't weigh in. there's the irony if they were to take that case to vindicate, they wouldn't be taking it to return to the circuit. they would be taking it to say there's no presidential immunity. that would be the legal ruling, but the defacto ruling could be, by the way, he's never going to be go to court because the time we issue our ruling, it's too late for him to actually have his trial. so they are in a will -- it's te for him to actually have his trial. so they're in a conundrum if they decide to take it to vindicate a principle that they will actually be undermining. >> in the wake of talking about institutionalism i want to talk about that poll on thomas' recusal. the breakdown within it was interesting. you had 91% of democrats, that's not surprising, saying he ought to recuse, 66% independents and

32% saying thomas should have recused himself. talk about the ethical cloud hanging over this court. >> i think it's an ethical cloud that hangs over the court in terms of how the public views the court. i think the court has washed its hands of this as a problem both because they told us this fall that they have ethics rules that they follow and that, you know, we're just not smart enough to understand them, and because the other justices have not done much to intimate that the ethics problem bothers them. so i think what you get is this growing divide between how the court perceives itself as having sort of fought back from the brink of illegitimacy after the dobbs leak and all the scandals that have been revealed, and then again justice thomas refusing to recuse in a case where his wife has material interests in the outcome.

i just don't think the court thinks about this as a problem that it has to deal with. and so then the question is -- and this goes exactly to what andrew was saying -- we're about to have the court weigh in not once but twice in the span of a few weeks about one of the most consequential presidential election matters since bush v. gore. and the fact that it doesn't seem to cross their minds that this is a real issue for them, whether or not the american public is just going to exceed to this ruling the way they did after bush v. gore, i think it just shows what different worlds we live in where you and i and andrew can think this is kind of a problem for the court. the court doesn't seem to have much belief that it's a problem for them at all. >> thank you so much for taking the time to be with us. andrew weissmann, thank you. for more analysis on the courts and the big legal stories we cover, sign up now for the

"deadline: legal newsletters." sign up using the qr code your screen. next, jack smith telling a judge today of online threat made to potential witnesses in the donald trump classified documents case. those details are next. those det ♪ i'm gonna hold you forever... ♪ ♪ i'll be there... ♪ ♪ you don't... ♪ ♪ you don't have to worry... ♪

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a new filing out from special counsel jack smith's office in the donald trump classified documents case suggesting a potential government witness has received threats on line.

those threats are under federal investigation. in a request to file an exhibit under seal, smith writes, "the exhibit describes in some detail threats that have been made over social media to a prospective government witness and the surrounding circumstances, and the fact that those threats are the subject of an ongoing federal investigation being handled by a united states attorney's office. disclosure of the details and circumstances of the threats risks disrupting the investigation." it is a filing that raises some serious questions about witness safety. something that's evidently been a theme in donald trump's various court cases. the decision on the filing will be judge eileen cannon's to make. and they want to bar trump's legal team from viewing the exhibit. we'll monitor that big decision for you. coming up, more on today's historic arguments at the supreme court over whether trump can run for office. michigan's secretary of state joins the program to discuss. she was there in the courthouse today. she's going to be with us after

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i voted for donald trump in 2020. i am a registered republican. and i watched with horror on january 6th. i believe in rule of law. i believe in our constitution. i believe in its very plain words that said you cannot take an oath of office and then subvert that oath and foment violence, foment insurrection. >> this is very personal to me. i've lived a hell of a long time, and i've gone through a lot of presidents. and this is the first one that is trying to destroy the constitution. >> hi again, everyone. i'm in for nicolle wallace. it is 5:00 in new york. the prosecutors who brought the case against donald trump

reiteraing that the former president should not be able to run for office again over his conduct on january 6th. it was the question before the supreme court today as the nine justices heard opening arguments and signaled skepticism that the ruling by colorado's supreme court in december to disqualify trump should stand. jonathan mitchell, trump's attorney, emphasized two arguments. first, that the president is not an officer of the united states and, therefore, section three of the 14th amendment does not apply to him. and second, that disqualifying trump under the amendment would require action from congress. the question of whether what happened on january 6th qualified as an insurrection are front and center. here's what mitchell said when asked -- >> there needs to be an organized concerted better to to overthrow the government of the united states through violence. and have -- >> the point is that a chaotic effort to overthrow the government is not an insurrection? >> we didn't concede that it was an effort to overthrow the government either. this was a riot, not an

insurrection. >> justices across the ideological spectrum asked about one state having the power to disqualify a candidate for federal office. here's justice kagan. >> a lot of anderson's reasoning is really about that, like what's a state doing deciding who gets to -- who other citizens get to vote for for president? >> colorado is not deciding who other states get to vote for for president. it's deciding how to assign its own electors under its article two power, and the constitution grants them that -- >> but the effect naf is obvious, yes? >> the lawyers for the colorado voters asked for a ruling from the court by this sunday before the state mails out primary ballots. "the new york times" writes that deadline seems unrealistic, but the court may well act before the super tuesday on march 5th when colorado and 14 other states hold their primaries. we will see if the court acts swiftly with this decision. in the meantime, we can reflect

at the extraordinary moment we find ourselves in. susan glasser of "the new yorker" said, quote, whatever comes of this case, remarkable to hear oral arguments at the supreme court whether the ex-president, being an insurrectionist is just another ballot access issue like being the right age or living within a district's lines. and that is where we start this hour with former acting assistant attorney general for national security at the department of justice is and co-host of the msnbc podcast "prosecuting donald trump," mary mccord is here. and with me at the table, former assistant u.s. attorney maya wiley. plus, msnbc legal analyst lisa ruben. lisa, big picture, what stood out today? >> today felt like living in an upside down supreme court universe in some ways because i am used to a legal conservative movement that is about states' rights and federalism. i'm used to a legal conservative movement that cares lot about texturalism. if you had watched today's arguments, you would have thought it was a different world

because the people who cared about texturalism today weren't the people that you usually hear caring a lot about texturalism. in fact, you heard nobody really carrying about states' rights. you heard chief justice roberts say from his perspective what the 14th amendment is about and not just seconds three but all of its sections, was about enlarging the power of the federal government vis-a-vis the state's. thought justice jackson had a nice rebuttal in terms of her telling him from her perspective what the 14th amendment was about. but this was a group of people that is prepared to enlarge the power of congress relative to states to get to the outcome that they believe is the right one. and i'm not telling you that i think sitting here today that outcome is wrong. there was a part of me that agreed very much with justice barrett when she said, wait a second, if this one court in colorado gets to determine everything for the whole country, we are bound by its factual record, you are telling

me, mr. murray, the plaintiff's attorney, that we can only overturn factual findings for clear error. aren't you in effect telling me that a single judge in colorado, might be an elected judge, on the business of a week-long trial where she might have made determinations about evidence or expert testimony, that we wouldn't agree with gets to make a determination about who will be the president for the entire country? i sympathize a lot with that. yet, some of the arguments today about interpreting section three of the 14th amendment seemed like a universe that i didn't resides because the text textturalist approach would lead to a result that favors the plaintiffs. >> so lisa is in the upside down, and i am in the sunken place. so because the 14th amendment -- and i actually really -- i think lisa's done a master class of, you know, laying this out and really summarizing what happened today. what i want to pull back in,

though, is exactly this point, the 14th amendment has plain language. there is a friend of the court brief that was submitted by legal experts on the constitution, law professor that said, look, the plain language of the constitution says, a, that this is how it works. the state decides whether to allocate its electors just like the attorney said, who was defend the colorado decision. and it is the 15th amendment of the constitution, these are civil war amendments designed to prevent exactly this. and does so explicitly by saying that it doesn't require an act of congress, and that states -- the action that you can take is after the election if a state has not sufficiently allocated its electors.

i'm only saying that because it does go back to this texturalist point, that this is the thing. when it is voting rights, guess what happens -- the supreme court ignores the text of the constitution even though these amendments, the 14th amendment was designed to protect the count of votes that voters make, it's to protect the right to vote. and it was designed to do it to ensure that an insurrection doesn't happen, and let's back up one more step. in this situation, what we are hearing debated, and i absolutely agree with susan glaser, like it is normal is that jefferson davis who was the president of the confederacy sitting in richmond could serve as president of the united states because he didn't fight,

didn't bear an arm, during the civil war. that is outrageous. but this is what happens. we see a reluctance of the court in many instances -- >> the court at large. >> the court at large, the federal bench in many instances to actually apply the provisions of the civil war amendments as they were intended and as is made explicit. and the same goes for congress. when congress says we're going to do a broad sweeping bill following the 14th amendment of the constitution to say you can't undermine, you can't have a result that discriminates against people of color at the ballot, and that this supreme court says oh, yeah, congress, yeah, no, we're going to say that you can't -- sorri, you got to go back and do that again. so congress does not have the power to do what it is told to do to protect voters. but suddenly, suddenly when it's

this case, when it's this case, it's very uncomfortable doing what the 14th amendment clearly says. >> it's more alarming when you create that parallelism. there was sound from justice kavanaugh that i want to talk about. play it and talk about it on the other side. >> and just to be clear, under 2383, you agree that someone could be prosecuted for insurrection by federal prosecutors and, if convicted, could be or shall be disqualified then from office? >> yes. but the only caveat that ied add is that our client is arguing that he has presidential issues immunity. so we would not concede that he can be prosecuted for what he did on january 6th under 23 -- >> understood. asking the question about the theory of 2383. >> maya threw her hand up, which is i think all of us. >> let me tell you what i heard

because i want to peel back the curtain. if maya and i are the little wizards that dory discovers, this is a result in search of reasoning. justice kavanaugh is being selectively historical and selectively very into federal supremacy. he's already decided, i think, that for him the right answer here is that only congress gets to implement the 14th amendment. therefore, he's going to say, well, but there are other mechanisms to disqualify someone from office, impeachment and conviction is one. and guess what, there's another -- 18 usc 2383, which is the federal criminal insurrection statute, one of the automatic penalties in addition to serving time or paying a fine is that you are automatically disqualified from holding office. that's interesting to me in two ways. one because it will inform his reasoning in this case. but it's also interesting to me because it suggests the overhang of the immunity appeal that they

are expecting in this argument today. if you take justice kavanaugh at his word, when he says someone, he might be thinking about a former president. and it's his way of saying, well, wait a second, there are lots of ways of making this guy accountable, one of them could have been proscecution by the department of justice is under this seconds 23 -- 2383. that's not one he has used. you can see down the road when they are deciding the issues mind appeal or -- the immunity appeal or saying to themselves this guy can't possibly be immune because we have a federal statute that contemplates that the department of justice is could prosecute somebody for insurrection and disqualify them from holding office. >> if someone was not listening as we were all listening for entirety of those hearings today, what would you tell them was the top line of what they

had missed? >> i think the judges almost entirely across the board, not necessarily every one of them, but most of them i think have deep reservations about a single state potential being the determiner who've gets to be on the presidential ballot. there's various ways that the court could rule, you know, various legal arguments they could accept, and we can talk about which ones certainly justices seem to be more enamored with and which ones others were. but i think you heard it from, you know, those that -- use the quote/unquote liberals, you heard it from the conservatives, a deep reservation that one state, colorado, could essentially make this decision. and one of the things that mr. murray said in response to that is it wouldn't be colorado. it would be this court, the supreme court making that decision. that didn't really satisfy the justices because, indeed, it's a case that was brought under

state ballot access laws, laws that are all about, you know, who can be on the ballot and what the secretary of state has to do in terms of determining qualifications, and into colorado what the procedure is when you think that someone isn't qualified and you can seek review in the court of that. that's what happened here. and one of the interesting responses that also mr. murray mentioned and, in fact, the counsel for the secretary of state of colorado who got a short amount of argument time made this argument, as well, is that actually this is not new to the way that states administer elections. states do have the power under article 2, the electors clause, to decide how they're going to allocate their presidential electors. every state does that by winner take all. every state comment two. and the -- except two. and the way you decide how to allocate electors has to do with who you're going to let on the ballot to begin with. so what one of the things that

both of these advocates made clear is that we already have a lot of disparities between states in terms of who is on ballots. in some cases certain people would be rejected from the ballots. other cases they will let you be on a ballot even if you're not qualified. even if you're not the right age or you're not a naturalized -- not a natural-born citizen. so there is already discrepancies, and one of the things that they made clear is this is what federalism is. this is what the constitution was designed to give states this power. but still, i think the justices in a case like this were very concerned about that. and in fact, one of the things you said is -- they said is maybe it would make sense for states to be able to enforce section 3 of the 14th amendment with respect to disqualifying state officials, but when we're talking about a national office, several of them used that term, a national office, like the presidency, shouldn't that be the federal government, the

congress that makes the -- determines how that can be enforced? >> mary, you led me exactly where i want to go. i want to bring into this michigan secretary of state jocelyn benson. secretary benson, you were mentioned by justice kagan during the arguments. take a listen. >> it sounds awfully national to me. so whatever means there are to enforce it would suggest that they have to be federal, national means. why does -- if you weren't from colorado and were from wisconsin or you were from michigan and it really -- what the michigan secretary of state did is going to make the difference between, you know, whether candidate a is elected or candidate b is elected, i mean it seeps quite extraordinary, doesn't it? >> if i am not mistaken, your former law school professor giving you a little shout out there. talk about this national question, whether one state should be able to have this influence on a national election. >> yes. justice kagan was my former law

professor, and so i appreciated the elevation of michigan today and a recognition of the point she was trying to make which i agreed with, which is the importance of clarity for voters nationwide on who is permitted to serve and who should provide that clarity. in my view, one of the themes of today's oral arguments was the issue of ambiguity, not just the novelty of this question as it applies here, but the ambiguity of what's an insurrection, what's an officer of the united states, and who should make those calls. should it be the states, or should it be the federal government? in my view, the justices were almost unanimously clear that the federal government does have that role, and it's an argument that i agree with being from the states because we want to give voters that clarity, that uniformity, and we want the federal government to have uniform response to these ambiguous questions. and then the second thing that i thought was notable and was to me my favorite moment of the oral arguments was when justice

jackson really talked about the ambiguity of the clause and said in that case, shouldn't we recognize ambiguity and defer to ballot access when there is am big utah -- ambiguity, a path justices may take in issuing their decision. >> you held back from weighing in on how the supreme court should rule, but you said they should act swiftly. can you talk about what swiftly looks like in a case like this, why it matters, why it's good for our democraci? >> yeah. we need clarity for all of us states having primary elections in michigan, our primary election is february 27th, with nine days of voting happening before that, early voting. so in michigan and in all of the states participating in primary elections, after the 27th, these voters, the political parties, and election officials need clarity and finalality on this issue. the court is meeting for a conference to discuss cases.

i assume this will be on their agenda next friday, the 16th. my hope is we could see a decision the following week. the court in every effort it's made so far seems to be expediting this case and also taking the seriousness of the issue of providing finality to those in the states as front of mind. so i'm optimistic actually after today's oral arguments and we'll see the finality by the end of the month. >> thank you so much for your time. i'm going to see you bright and early saturday morning. the panel is sticking with me. coming up, the special counsel report into then-vice president biden's handling of classified documents. the special counsel finding there's evidence the president willfully retained classified information, but that no charges will be filed and wouldn't be even if president biden weren't president. that is next. plus, we'll get back to our top story and get reaction to today's oral arguments at the

supreme court over donald trump's ballot eligibility from top democratic elections attorney mark alias and this culmination reminds us of the chaos the ex-president brings to virtually everything he does. our political panel weighs in. ds our political panel weighs in. ♪♪ whoo! ♪♪ light work! ♪♪ next victims. ♪♪ you ready for this? ♪pump up the jam pump it up♪ are you taking the right multi-vitamin? with new chapter, you get excellent quality, organic ingredients, and fermentation. fermentation? yes. feel the difference with 20 plus nutrients your body can absorb. so you can do you. learn more at newchapter.com.

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back to the other breaking story we're following this afternoon. special counsel robert hurr's report into classified documents found in president biden's possession has been released. he declined to recommend

criminal charges noting the evidence does not establish the president's guilt beyond a reasonable doubt, and the prosecution is unwarranted and would be unwarranted were president biden not in office. however, the report noted that there was evidence the president willfully retained documents. president biden declined to assert executive privilege and said this in the last hour about the special counsel's findings -- >> i was pleased to see they reached a conclusion i believe they knew all along they would, that there are no charges should be brought in this case. special counsel acknowledged i cooperated completely, i did not throw up any roadblocks, i sought no delays. especially pleased to see the special counsel make clear the stark differences between this case and donald trump. >> the president referencing that hurr's report emphasized the decision not to pursue criminal charges was separate from the doj policy refraining from criminally charging presidents.

from the special counsel's report, quote, we conclude that no criminal charges are warranted in this matter. we would reach the same conclusion even if department of justice policy did not foreclose criminal charges against the sitting president. and we are back with mary, maya, and lisa. talk to me about the difference between evidence of and finding that he did, in fact, willfully retain these documents. >> yeah, so look, and i was on the civil side, not on the criminal side at the u.s. attorney's office, to make that very clear. but typically what happens is obviously the prosecutors have to decide if they have enough evidence to bring to trial a case that would say you knew you had classified documents, should have turned them over, and didn't. it is for a jury to decide whether or not you had willfully withheld those documents and, therefore, were guilty of a crime. so typically if you're making a

non-charging decision, as we see here, which is like we're not charging joe biden, you would really expect to see it framed differently from the way it appears to be framed in this report. i have not read all 388 pages. but it really is making it sound like, look, he willfully withheld classified documents, but yet we're not going to charge him because we don't think we can convince a jury of it, is almost the framing. and that really feels like an unfair framing when you pull back and look at the actual recitation of their evidence which is that, you know, there -- some evidence that suggested it was long enough ago that he didn't remember that he had had some of these documents, that he had notebooks that had notations, that themselves were not the classified documents. but themselves might have been considered -- should have been construed as classified and, therefore, not properly held,

yet he didn't, but maybe that was because he didn't know or remember. there's some evidence that maybe he thought he was legally lawfully allowed to have them. in other words, there's all this what we would call exculpatory evidence. evidence that he did not willfully withhold. there's some evidence that you could use to argue that maybe he did or should have. but the point is, if you're making the decision not to charge you generally don't frame it in a way that suggests guilt. >> mary, i am curious about the lengths the special counsel went to to note the difference between president biden and then-president trump in terms of their handling of classified materials. >> yes. i mean, that's not surprising at all because in cases like this, really in all cases, but particularly cases involving national security, prosecutors will always look to see what are the like cases, what are cases with any type of similar conduct, how have we handled

those in the past, how have prosecutorial decisions been made when there have been prosecutorial decisions to actually bring a indicates, how have those been resolved, have there been plea agreements, what have the sentences looked like. and you may recall that when mr. trump was first indicted, a lot of us at that time were drawing contrasts very much like the contrast that mr. hurr put in his report, contrasts between mr. trump's obstructive conduct from the very beginning, not cooperating, not returning documents, and then actually enlisting two other individuals to help hide documents and to lie about it and to destroy evidence. that's very, very different, and mr. hurr points that out, from mr. biden's cooperation from the very beginning. so it's always something relevant to look to see how have other cases been handled. i will note when i first read this report this afternoon, or read the executive summary, i,

like maya, have not read the 300-plus pages of the report yet. but the first thing i thought about was david petraeus. david petraeus had kept notebooks. now the difference between his notebooks and president biden's are mr. petraeus' notebooks were from the time when he was in afghanistan, so they were highly classified. it wasn't just sort of a general here's my diary of the day and maybe a few things in it are classified. highly classified. he kept those notebooks. he did not turn them in when he left his military service. and then he shared them knowing they were classified with his biographer who then used them when writing a book for him. he then lied to the fbi about whether he had shared those notebooks with the biographer. he was -- pleaded guilty to a misdemeanor charge of mishandling. but you can see already there the big differences. and my guess is that somewhere in this lengthy report mr. hurr

probably compares this case to the case involving david petraeus. and you see there's distinctions, as well. >> this isn't over politically. in some ways the beginning of the beginning. legally, is this over for president biden? >> it should be, but let me answer that question a little bit differently. and i'm certainly curious to hear what both maya and mary as former federal prosecutors would say. federal statute of limitations generally is five years. in making this declination decision it's not clear that a future department justice is necessarily bound by it, and in a trump department of justice with a five-year statute of limitations from the time of the discovery of the alleged willful retension which was in fall of 2022, i'm not sure that former -- president biden and those around him can be sure that this is an all clear. normally, in the normal course

it should be. but i can't tell you sitting here today that if former president trump is elected that it will be. >> real quick. >> former president trump has made clear he will weaponize the department of the justice so i think lisa's right. >> ranking member of the house intelligence committee congressman jim himes of connecticut. congressman, your first reaction to the special counsel's report? >> well, you know, as ranking member of the intelligence committee i spend a lot of time making sure that classified information doesn't get out into the wild. no matter who does it, president of the united states or an air national guardsman in cape cod, massachusetts, we need to do more to make it very clear to everybody from the bottom to the top that classified information out in the wild is not okay. point two, not surprisingly the trump appointed u.s. attorney and now special counsel decided

not to charge this president because -- and you can read the reasons for yourselves, so i won't go over them. the degree of cooperation, the fact that the president prioritized sitting for a deposition literally hours after israel was attacked, shows that his commitment was to make this right. and pretty stark contrast to the way former president donald trump treated similar retention of classified information. >> congressman to underline something you said, the special counsel specifically noted he was not charging the president because there was not enough evidence to merit it. it would seem that should be the end of it, as my colleague andrew weiss mann pointed out, there were adjectives, ad verbs to talk about the testimony. tell what a jury would think of him, your sense whether or not that was necessary from the special counsel. >> well, there were lots of aspects of this report that

raised questions in my mind. you know, what's getting a lot of attention right now is the special counsel's judgment that if president biden chose to do so, he could approach the jury as -- i can't remember the exact language -- but as a forgetful old man. you know, the fact that a special counsel wrote that about the president but didn't write that about any of the other people who testified to him, who he deposed, the fact that the special counsel was speculating about a possible defense strategy is pretty wild. and again, i will point out what should be obvious to everyone, that the president of the united states sat for a deposition -- by the way, nobody wants to sit for a deposition. i don't know but you, but if you ask me to identify precisely where i was what years, et cetera, under that adversarial questioning i would have a tough time. even if i hadn't just reviewed photographs of one of the worst crimes perpetrated against israel in its history.

and so i am puzzled why the special counsel chose to make statements that he had no business making. the president's attorneys obviously had a response to that. but again, you know, the president was cleared of wrongdoing, and he unlike donald trump was completely cooperative with respect to the seriousness of his retention of classified information. >> notable that you had the president out there already today reading from this report specifically on the piece about the ways in which there is a difference between his handling and former president trump's handling. politically speaking, is that the argument that democrats have to drive home in the coming days? >> well, i think that what the american people need to consider because in some ways they're parallel examples. you had two presidents who had classified information in places where they shouldn't be. now by the way, that puts the burden on people like me to make

sure that the systems work better, to make sure that that doesn't happen again in the future. what -- that you could say, okay, both presidents retained closs fide information. then -- classified information. then you need to ask how did they respond. former president trump did everything he could to obstruct the investigation, hearded people to obstruct the information according to the indictment. it's not clear that he was honest or encouraged other people to be honest about it. the stark contrast between those two behaviors should be clear for all to see, and that really matters. that really matters if we believe that we are a country of the rule of law. >> congressman jim himes. thank you so much. mary, maya, lisa, thank you all so much for getting us started. when we return, top democratic election attorney mark elias who took issue with disgraced ex-president's arguments for remaining on the ballot ahead of today's hearings, what he heard in today's arguments before the supreme court. we're going to have that after a very quick break. stay with us. stay with us

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could change your life forever. because of you, we are happy and we know it. thank you. thank you. thank you. thank you. please call or go online right now to give if operators are busy, please wait patiently or go to loveshriners.org right away growing up, my parents wanted me to become a doctor or an engineer. those are good careers! but i chose a different path. first, as mayor and then in the legislature. i enshrined abortion rights in our california constitution. in the face of trump, i strengthened hate crime laws and lowered the costs for the middle class. now i'm running to bring the fight to congress. you were always stubborn. and on that note, i'm evan low, and i approve this message. two leading candidates for senate. two very different visions for california. steve garvey, the leading republican, is too conservative for california.

he voted for trump twice and supported republicans for years, including far right conservatives. adam schiff, the leading democrat, defended democracy against trump and the insurrectionists. he helped build affordable housing, lower drug costs, and bring good jobs back home. the choice is clear. i'm adam schiff, and i approve this message. what about the idea that we should think about democracy? think about the right of the people to elect candidates of their choice? of letting the people decide? because your position has the effect of disenfranchising voters to a significant degree. >> the reason we're here is that president trump tried to disenfranchise 80 million americans who voted against him,

and the constitution doesn't require that he be given another chance. >> two very different views and arguments in court today from the colorado voters. how the ex-president tried to overturn the will of the voters, and on the other side what could be viewed as a wholly anti-democratic point from justice brett kavanaugh. that it would be anti-democratic to not let trump run. something our next guest says he is still trying to digest. joining us now, voting rights attorney founder of the site democracy docket, mark elias is here. mark elias, make it make sense. >> you know, there are parts of this that are hard to make sense. i mean, let's start with the fact that donald trump's lawyer began his argument, literally in the beginning of each argument, each side gets a couple of minutes to speak without interruption or question from the court. he used his time to say the following -- that a ruling from this court that affirms the decision below would take away the votes of potentially millions, tens of millions of

americans. i mean, donald trump sent a lawyer to the supreme court to on purpose say that if the rule of law is followed, the constitution in colorado, tens of millions of voters would have their votes taken away. when, in fact, donald trump mounted an effort to take away the vote of 80 million americans. >> uh-huh. >> i mean, it's extraordinary. it was -- there was a certain surreal quality to listening to justice kavanaugh and conservative justices lament the fact that voters are not getting the ability to elect their candidate of choice as we continue to see the federal courts being weaponized by donald trump to cut back on voting rights. >> marc, you said the plain text should win the day and the unprecedented for of this doesn't mean it has to be difficult. i got to tell you, after what we heard today, doesn't seem like the court necessarily agrees with that. >> i agree with you. i think that, you know, i could come here and say, you know, you

can't read too much into questions, justices are figuring things out. there's -- it's clear that there is not a majority of the court to uphold kicking donald trump off the ballot. you know, as the argument went along, i think that the lawyer for the voters who were trying to do so, i think he actually lost ground as he was going along. but i think it was going to be long odds from the get-go. but i don't think that that means that the argument itself was a total loss. i think there were some things that came out of it that actually may wind up having some long-term consequences, including, by the way, donald trump's lawyer saying that -- >> yes -- >> -- though january 6th was not an insurrection, the events were shameful, criminal, and violent. i think donald trump in some other courtrooms is going to be arguing that it was not criminal and violent. >> can we zoom in on that for a second? that was clearly a very strategic choice, right, to make a series of concession in those

arguments, in some ways allowed him to one 1/6 aside because he knew it was not firm ground for him to be having 1/6 front and center. do you think it was considered the way in which those remarks would then complicate some of these other legal cases? >> look, i think that, you know, to credit the lawyer for donald trump who argued the case today, i think he gave ground to win the case in front of him. and you know, i can -- i can understand that. he's got nine justices looking at him today and figures we'll worry about tomorrow tomorrow. that doesn't mean when that tomorrow doesn't come, right, tomorrow does come. but i think he made those concessions, whether it was playing this democracy card that may frankly come back to haunt him in some of the election cases that i and others litigate, or it is this violent point that, you know, donald trump is -- has said it was a

peaceful gathering. i think he thinks the way he wins the day today was to take the insurrection point off the table. and you know, he did. you know, there were almost no questions from the court after that about whether or not it was an insurrection. >> i just want to talk about the -- the stakes here because, you know, it's easy to get into what are they going to do, is this going to be unanimous. what does it mean for democracy itself if the justices allow trump to stay on the ballot? what does that then mean? >> look, i think it's very dangerous, and i've said that before. if you distance yourself for a second from the technical legal arguments that we heard for several hours today, essentially what has happened is that for the first time in our nation's history a president of the united states, because he was a sitting president of the united states, instigated an insurrection, whether you use the term insurrection which i think is legally correct or you credit donald trump's own

lawyers that he instigated a shameful criminal, violent riot, and -- and then when the states tried to apply the plain text of the constitution to it, rather than allowing the states to do that -- states have all kinds of powers to control who's on their ballots. we talk about that all the time in other contexts. when that happened, the supreme court felt the need to step in and to protect donald trump. i think that they will rue the day they did that even if they try to do it in a narrow way. >> i hear your point, marc, that trump's attorney thinks i'm before these nine justices, i have to win this case tomorrow, i'll think about it tomorrow, tomorrow. for what i'm hearing from you you are thinking about tomorrow today. help me understand based on comments on democracy that we heard from kavanaugh and others, where you see yourself taking this fight next. >> yeah. so look, i'm very much a believer that you take the law

as it is. you know, you advocate for the law, you take it as it is. today i heard a conservative supreme court justice say that basically that democracy can and need to prevail, which is that when you have a constitutional provision that is open to multiple interpretations, that you should interpret it in a way that enfranchises voters, that gives voters the ability to elect their candidates of choice, to use the phrase. i heard donald trump's own lawyer endorse that. so i can promise you, as we litigate cases -- right now my legal team is litigating 50 voting in election cases in 18 states or so. i can promise as we litigate through the rest of this cycle, and i'm sure this will be true in other voting rights organizations and law firms and groups, i would expect that we will hold them at their word. that donald trump does not support the disenfranchise. ment of millions of americans and the supreme court should interp rate the first amendment, the 14th amendment, the other voting rights laws to

enfranchise voters which means striking down repressive laws that we see republican legislatures adopt and rejecting those frivolous legal claims that republicans keep bringing. they brought another one in arizona this week to try to make voting harder. >> thank you for offering a silver lining on a day when we needed it most. marc elias, thanks for your time. when we return, today's arguments at the united states supreme court a reminder of the chaos the disgraced ex-president creates and the legal clouds that hang over his head even as he gets closer to becoming the republican nominee for president. the fraught politics of this moment after a quick break. e frs moment after a quick break

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report in the atlantic, awesome data showed that americans aren't paying close attention to poll tickets and believe donald trump will really be the republican nominee but each bit of tuesday's chaos had trump's fingerprints all over it offering a partial preview of what life will be like if trump is reelected in november. joining us, charlie sykes and host of the podcast fast politics, special correspondent for "vanity fair."

in the two stories we've been talking about today, what we heard today at the supreme court, a little blow back you're going to hear. this moment we find ourselves in, it's a preview of what's to come. >> yeah. and it's also a reminder of what we came from. donald trump. you know, i think that what's the scariest part is that you have partisans in the republican party who truly believe in weaponizing the federal government as we've seen with the house. what's really scary this week we saw republicans try to impeach a cabinet secretary. that's something that hasn't happened in more than 100 years. they weren't able to do it because these folks aren't good at math but it was a historic and terrifying use of the government so i think what's even scarier is trumpism has really scaled and we're seeing republicans use it in different

parts of the federal government. >> it's interesting, right, charlie, the limits, the guardrails, not the official ones -- >> right. >> -- but the unofficial wurns is their own ineptitude is the one thing that has stopped this whole thing from going off the rails. >> it has been so far, but today is a day to remind you this is not a drill. this is very possible that donald trump will return to the white house, will weaponize the department of justice and there will be no guardrails. there's no indication the republican party will ever stand up to him. i don't think you can necessarily count on the courts to do the business other institutions have failed to do. the d.c. court of appeals made it clear that he is not immune, that he is not a king, but i don't think there should be any denial about what life is going to be like. it's interesting, you mentioned that first year of the trump presidency, what it felt like. every news cycle was packed with

ten different things going on and you can't even keep up with it. every week this year is going to be like this. it is going to be here like we have never seen. that may just be a prelude to a trump presidency. we have to strap in on all of this because there's a lot of things that are going to happen, the court cases are coming fast and furious. donald trump is behaving as if he is someone who can do anything. there will be no accountability. i'm guessing he's going to be emboldened. >> every night i sit him down and walk us through our family schedule. today you have the nevada gop caucus. today you have the oral arguments on the 14th amendment case. february 12th through 13th you have hearings over the classified documents in the mar-a-lago case and on february 15th you have the hearing in fulton county election case on the motion to disqualify da

willis. february 15th, new york hush money case hearing. february 24th you have the south carolina gop primary. march 1st you have the scheduling conference in the mar-a-lago case. march 4th you have the tentative federal election trial date. we've talked about the ways in which all of these political and legal dates could potentially crash, molly, into one another. we are in it. we are in the crash. >> yeah. it's happening right now and, i mean, today we saw the documentation for the $83 million that donald trump needs to either pay or make as a bond in order to appeal so that's another thing. this is unprecedented. we're in an election year with an incumbent versus an incumbent. this has never happened. who has the incumbent advantage here? i mean, i think it's president biden but this is a completely

unprecedented situation and there isn't history. >> i realize i said i still have march 4th on this calendar. you should put nothing on the calendar in pen. it has been erased and will be moved on my calendar. >> you might notice a theme. >> it is total chaos, but chaos followings him. and we can't be a country in a disarray and a world on four and go through four more years of chaos. we won't survive it. >> world on fire and go through four more years of chaos. we won't survive it. everything that donald trump touches, it's chaos. but chaos follows him. >> but chaos follows him, trace. a country in disarray, a world on fire, we won't survive it. everything he touches is chaos. >> we only have 30 seconds left. i appreciate the message

discipline. it tells me that focus groups are telling her that is a strong argument. >> or that's just her argument. look, it's interesting that people like nikki haley and james lankford are shocked finding out what's happening to their party. the baby alligator has climbed up and is coming down the street and eating them. she's amazed this is going on. it's accelerating. i wish nikki haley would have realized this years ago. >> when she was following him along into the chaos. >> thank you both so much for spending some time with us. we're going to sneak in a quick break. be right back. how many people did you tell? only pay for what you need. jingle: ♪ liberty. liberty. liberty. ♪ baby: ♪ liberty. ♪ ♪ ♪ ♪

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xfinity rewards presents: '1st and 10gs.' xfinity is giving away ten grand to a new lucky winner for every first and ten during the big game. enter daily through february 9th for a chance to win 10gs. with the ultimate speed, power, and reliability the xfinity 10g network is made for streaming live sports. because it's only live once. join xfinity rewards on the xfinity app or go to xfinity1stand10gs.com for your chance to win. tonight at 8 you can reach rachel maddow and the primetime team recap supreme court arguments. ari melber is here with the beet

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